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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS)
(CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS)
BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Aged Care,
the Hon Mark Butler MP)
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS)
(CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS)
BILL 2023
OUTLINE
The purpose of this Bill is to modernise and streamline the existing Commonwealth
regulatory framework which includes eight different tobacco-related Acts, legislative
instruments and court decisions administered across the Health and Treasury
portfolios, and to strengthen Australia's regulation of tobacco products in line with
international best practice.
The reforms represent a renewed focus on improving the public health of Australians
by discouraging smoking and the use of tobacco products and restricting the
promotion of e-cigarettes.
The existing tobacco control measures, both regulatory and non-regulatory,
implemented by all Australian governments have contributed to smoking prevalence
in Australia being amongst the lowest in the world. Despite Australia's success in
reducing the smoking rate over recent decades and particularly following the plain
packaging laws, tobacco use remains the leading cause of preventable death and
disability among Australians. It is also the greatest contributor to the health gap
between First Nations people and other Australians.
The National Tobacco Strategy 2023-2030 (NTS) was developed by all Australian
governments to improve the health of all Australians by reducing tobacco use. The
NTS aims to achieve a national daily smoking prevalence of less than 10% by 2025
and 5% or less by 2030 in Australia, and to prioritise tackling smoking among
First Nations people to reduce the daily smoking rate to 27% or less by 2030.
Consistent with these aims there is more that can be done to reduce the preventable
death and disability caused by tobacco use.
Reforms to the Commonwealth tobacco control framework are needed to effectively
respond to changes in the market and novel and emerging products which influence
consumer behaviour and seek to undermine existing tobacco control measures.
Reforms are also necessary to ensure Australia meets its ongoing obligations under
the World Health Organization (WHO) Framework Convention on Tobacco Control
(FCTC).
Additional measures are required to strengthen Australia's world leading efforts in
tobacco control to achieve the goals for reducing smoking prevalence.
The Tobacco Advertising Prohibition Act 1992, the Tobacco Plain Packaging
Act 2011, the Tobacco Advertising Prohibition Regulation 1993 and the Tobacco
Plain Packaging Regulations 2011 have been the subject of a thematic review by the
Department of Health and Aged Care (the Department). The thematic review involved
a comprehensive analysis aimed at identifying options to modernise the legislative
framework for tobacco control, ensuring it remains fit-for-purpose, addresses current
gaps and limitations and will assist with tackling future challenges in tobacco control.
This included identifying options to enable Australian laws to keep up with the
changing tobacco and technological environment, to address challenges such as new
and emerging products and marketing strategies.
2
Public Health (Tobacco and Other Products) Bill 2023
The Public Health (Tobacco and Other Products) Bill 2023 (the Bill) and the
regulations proposed to be made under the Bill will consolidate Commonwealth
tobacco regulation into one legislation package, thereby streamlining the operation of
the legal framework. The Bill will be supported by the Public Health (Tobacco and
Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023.
The Bill modernises and simplifies the existing provisions and introduces new
measures to support the objective of discouraging smoking and tobacco use. It seeks
to address the health risks posed by vaping and e-cigarette products by prohibiting the
advertising and promotion of e-cigarettes. The amalgamation of the tobacco control
legislation will help to strengthen the tobacco control framework to meet current and
emerging issues.
The Bill does not address the stronger regulation of e-cigarette product availability
and supply. The Australian Government has committed to introduce stronger controls
on e-cigarette importation, contents and packaging and is working with states and
territories to address the black market for e-cigarette products through the therapeutic
goods framework and stronger border measures.
Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023
The Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023 (the Consequential Amendments and Transitional
Provisions Bill) and the regulations proposed to be made under the Consequential
Amendments and Transitional Provisions Bill are intended to ensure a smooth
transition to the new regime. They include provisions to allow time for any required
tobacco product production changes.
The rationale for new measures
The rationale for new measures is set out below. This rationale and associated
evidence are discussed in greater detail in the Impact Analysis in the Addendum.
Reduce tobacco palatability by restricting additives
Flavours and additives will be prohibited because they can enhance the attractiveness
and palatability of tobacco products; change the colour of products to make them
more appealing; create the impression of health benefits; and they are associated with
energy and vitality.1
Tobacco products contain many additives that enhance the attractiveness and
palatability of tobacco products, fostering uptake and addiction, particularly among
youth. Additives are used in tobacco products to improve flavour and aroma, mask
harsh and irritating characteristics, create milder and sweeter smoke, and reduce
sensory irritation.2
1
WHO FCTC Guidelines for Implementation of Article 5.3; Article 8; Article 9; and 10; Article 11; Article 12; Article 13;
Article 14 - 2011 edition.
2
World Health Organization (2019) 'Report on the Scientific Basis of Tobacco Product Regulation - TRS 1015'; Purcell
Consulting (2013), 'The Effects of Cigarette Additives on the Palatability of Cigarettes'.
3
Reduce tobacco product attractiveness by regulating product design features that
create novelty value
Product design features which create novelty value will be prohibited.
The attractiveness and appeal of tobacco products is strongly associated with their
physical characteristics and design features.3
Product design features, such as crush balls/capsules (which add a flavour or
substance to a tobacco product when crushed by the user) and novel cigarette filters
make products more attractive to current smokers and attract new users.4
Require health promotion inserts to encourage and empower people who smoke to
quit
Requirements will be made for health promotion inserts (HPIs) to be included in
tobacco product packaging.
HPIs are small information cards included in tobacco product packets, which provide
messages highlighting the benefits of quitting and promote effective cessation
resources and strategies. The measure aims to empower people who smoke by
providing education and quitting information to increase knowledge and awareness of
supports.
Evidence indicates that self-efficacy is critical to cessation activity;5 and people who
smoke are often unaware of how best to quit and the many sources available to help.6
HPIs are accessible and acceptable to people who smoke, but as yet are an untapped
channel for communicating with Australian people who smoke.7 Research shows that
the effectiveness of fear appeals (such as those generated by graphic health warnings)
increases when they are accompanied by efficacy messages.8
Canada has required pictorial health promotion inserts since 2012. Canada's inserts
have been found to increase quit attempts, even after controlling for traditional
predictors of cessation.9 An evaluation found that those who read the inserts a few
times were 1.57 times more likely to make a quit attempt than those who never read
3
World Health Organization (2017) 'WHO Study Group on Tobacco Product Regulation: Report on the Scientific Basis of
Tobacco Product Regulation: Sixth Report of a WHO Study Group'
4
R Talhout et al. (2018) 'Cigarette Design Features: Effects on Emission Levels, User Perception, and Behavior' 4(1):592-604.
Tobacco Regulatory Science.
5
E Greenhalgh et al (2022) '7.6.3 Unassisted Versus Assisted' in E Greenhalgh, M Scollo and M Winstanley (eds), Tobacco in
Australia: Facts and issues, Cancer Council Victoria; Y Castro, M Cano, M Businelle, V Correa-Fernández, W Heppner, CA
Mazas and DW Wetter (2014) 'A cross-lagged path analysis of five intrapersonal determinants of smoking cessation' Drug and
Alcohol Dependence, 137:98-105.; H Lee, D Catley and K Harris (2014) 'Improving understanding of the quitting process:
psychological predictors of quit attempts versus smoking cessation maintenance among college students' 49(10):1332-9,
Substance Use & Misuse.
6
E Greenhalgh, S Stillman and C Ford (2020) '7.14 Cessation assistance: telephone- and internet-based interventions' in E
Greenhalgh, M Scollo, and Winstanley (eds) Tobacco in Australia: Facts and Issues, Cancer Council Victoria.; E van Wijk, L
Landais and J Harting (2019) 'Understanding the multitude of barriers that prevent smokers in lower socioeconomic groups
from accessing smoking cessation support: a literature review', 123:143-51, Preventive Medicine.
7
E Brennan et al (2021) 'Public support for introducing cigarette pack inserts in Australia' 30(1): 117-118, Tobacco Control; C
Moodie (2018) 'Adult smokers' perceptions of cigarette pack inserts promoting cessation: a focus group study' 27(1): 72-77,
Tobacco Control.
8
K Witte and M Allen (2000) 'A meta-analysis of fear appeals: Implications for Effective Health Campaigns', 27(5): 591-615,
Health Education & Behavior. 249 M Tannenbaum et al (2015) 'Appealing to fear: a meta analysis of fear appeal effectiveness
and theories' 141(6): 1178-1204, Psychological Bulletin.
9
J Thrasher et al (2014) 'The Use of Cigarette Package Inserts to Supplement Pictorial Health warnings: An Evaluation of the
Canadian Policy' 17(7): 870-875, Nicotine Tobacco Research.
4
the inserts.10 Further, the inserts were read by a sizeable number of people who smoke,
with 26-31% of Canadian people who smoke surveyed having read the inserts at least
once in the prior month at each survey wave.11
Update and improve health warnings
The Bill will make provision for health warnings to be updated and improved via the
Regulations.
Health warnings are a set of pictorial and written health warnings describing the
harmful effects of tobacco use, displayed on each packet and package of tobacco
products. In line with Article 11 of the WHO FCTC, they provide a strong and
confronting message to people who smoke about the harmful health effects of
smoking and also convey the 'quit' message. Australia introduced the current suite of
graphic health warnings (GHWs) in 2012 under the Competition and Consumer
(Tobacco) Information Standard 2011.
New scientific research has emerged on the effects of tobacco use on health.12
Consistent with the WHO FCTC, it is important that health warnings are updated to
reflect this evidence in order to adequately inform Australians of what is currently
known about the health consequences of smoking.
Additionally, the impact of health warnings wear out over time and changes are
needed to maintain importance, and enhance impact and effectiveness.13 14 Evidence
shows that health warnings on tobacco packaging tend to wear-out quickly.15 16 This is
not due to diminishing effectiveness of content, but rather because of decreased
attention.17 Eye tracking studies suggest that people who smoke frequently eventually
stop attending to messages.18 19Even pictorial health warnings tend to start to lose
effectiveness within two years.20
An evaluation of Australian GHWs conducted in 2018 concluded there is strong
evidence of GHWs effectiveness in meeting their objectives, however the current
suite of images has worn out. The evaluation highlighted that there is a need to
address the current wear out and consider how to preempt wear wear-out for future
health warnings and recommended that GHWs are updated to increase their impact.
10
J Thrasher et al (2014) 'The Use of Cigarette Package Inserts to Supplement Pictorial Health warnings: An Evaluation of the
Canadian Policy' 17(7): 870-875, Nicotine Tobacco Research.
11
J Thrasher et al (2014) 'The Use of Cigarette Package Inserts to Supplement Pictorial Health warnings: An Evaluation of the
Canadian Policy' 17(7): 870-875, Nicotine Tobacco Research.
12
M Omare et al (2022) 'A Review of Tobacco Abuse and its Epidemiological Consequences' 30(6): 1485-1500, Journal of
Public Health.
13
C Ratneswaran et al (2016) 'Desensitisation to Cigarette Package Graphic Health Warnings: a Cohort Comparison Between
London and Singapore' 6(10):e012693, BMJ Open.
14
H Parada et al (2018) 'Trajectories of responses to pictorial cigarette pack warnings' 20(7):876-881, Nicotine and Tobacco
Research.
15
C Ratneswaran et al (2016) 'Desensitisation to cigarette package graphic health warnings: a cohort comparison between
London and Singapore' 6(10):e012693, BMJ Open.
16
H Parada et al (2018), 'Trajectories of Responses to Pictorial Cigarette Pack Warnings' 20(7):876-881, Nicotine Tobacco
Research.
17
D Anshari et al (2018), 'Which type of tobacco product warning imagery is more effective and sustainable over time? A
longitudinal assessment of smokers in Canada, Australia and Mexico', 8(7), BMJ Open
18
G Stothart et al (2016) 'Neural correlates of cigarette health warning avoidance among smokers', 161: 155-162, Drug and
Alcohol Dependence
19
J Fridriksson et al (2018) 'Smokers' Neurological Responses to Novel and Repeated Health Warning Labels (HWLs) From
Cigarette Packages', 9:319, Front Psychiatry.
20
K Swayampakala et al (2017) 'Over-Time Impacts of Pictorial Health Warning Labels and their Differences across Smoker
Subgroups: Results from Adult Smokers in Canada and Australia', 20(7):888-896, Nicotine Tob Res.
5
Further restrictions on advertising and promotion
Although Australia has significant tobacco advertising prohibitions, there are some
areas where advertising is evident. Supported by the strong evidence demonstrating
the influence advertising and promotion of tobacco products has on uptake and
continuation of smoking, the Bill includes further restrictions on the current
advertising provisions.
The proposed restrictions would include prohibitions on acknowledgements of
assistance or support from the tobacco industry and to reduce existing exceptions for
publication or broadcast to prohibit any advertisements that are likely to promote
tobacco products or smoking. This approach recognises that promotion of tobacco
companies themselves is a form of promotion of tobacco products or tobacco use,
even without the presentation of brand names or trademarks.
To continue to meet the objective of the Tobacco Advertising Prohibition Act 1992 to
improve public health, additional regulation is required to limit the public's exposure
to advertising and promotion of e-cigarettes and other novel products.
This approach reflects that public exposure to e-cigarette advertising and promotion
poses a range of direct and indirect risks to tobacco control and population health.
• Exposure to e-cigarette advertising across a wide range of media is positively
associated with e-cigarette use among young people. This broadly accords
with earlier research showing that the advertising and promotional activities
by tobacco companies have been shown to cause the onset and continuation of
smoking among young people.21
• E-cigarette use increases the risk of nicotine addiction, particularly among
young people.22
• E-cigarette use by people who do not smoke tobacco increases the risk of
future tobacco use, particularly among young people.23
• E-cigarette use by people who have quit smoking may result in an increased
likelihood of tobacco smoking relapse compared with people who formerly
smoked tobacco who do not use e-cigarettes.24
• All e-cigarette users are exposed to chemicals and toxins that have the
potential to cause adverse health effects.25
21
National Center for Chronic Disease Prevention and Health Promotion Office on Smoking and Health (US) (2012) 'Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General' US Department of Health and Human
Services.
22
National Center for Chronic Disease Prevention and Health Promotion (US) Office on Smoking and Health (2016) 'E-Cigarette
Use Among Youth and Young Adults; A Report of the Surgeon General' US Department of Health and Human Services.
23
O Baenziger et al (2021) 'E-cigarette use and combustible tobacco cigarette smoking uptake among non-smokers, including
relapse in former smokers: umbrella review, systematic review and meta-analysis' 11(3): e045603, BMJ Open.
24
O Baenziger et al (2021) 'E-cigarette use and combustible tobacco cigarette smoking uptake among non-smokers, including
relapse in former smokers: umbrella review, systematic review and meta-analysis' 11(3): e045603, BMJ Open.
25
National Health and Medical Research Council (2022) 'CEO Statement: Electronic Cigarettes' National Health and Medical
Research Council
6
Further standardise the size of tobacco packets and products - cigarette pack, carton
and stick size, roll your own (RYO) tobacco pouch size and little cigar and cigarillo
pack size
Varying cigarette pack sizes and RYO pouch sizes increase product differentiation
based on price and increases appeal to different market segments. Larger cigarette
pack sizes are associated with increased consumption, and increased consumption
makes it somewhat harder for people who smoke to quit.26Small RYO pouch sizes and
the availability of little cigars and cigarillos in small pack sizes provide a low price
point for youth and are a key factor in observed increases in youth uptake.
Varying cigarette stick sizes increase appeal to different market segments and can
mislead perceptions of harm.
Require mandatory disclosure of tobacco industry volumes and pricing, product
ingredients and tobacco industry advertising. promotion and sponsorship activities
and expenditure
New reporting requirements outlined in the Bill will increase transparency of industry
practices and support policy development for tobacco control measures. The reporting
requirements give effect to Australia's obligations under Articles 5(3), 10, 12(c),
12(f), 13(4)(d) and 20(2) of the WHO FCTC. There is international precedent for
reporting requirements including in Canada and New Zealand, which the Australian
approach draws on.
The Australian Government currently has limited access to data on sales volumes and
pricing for specific brands and products. This information will improve targeting of
policies, improving measurement and evaluation of impact. It is also important for
public transparency.
The limited access to information on tobacco advertising, promotion and sponsorship
activities and expenditure limits the ability to track trends and have comprehensive
advertising prohibitions.
The purpose of the report relating to tobacco product ingredients in particular, will be
to inform government policy development and enhance public awareness of (and
access to information regarding) the adverse health consequences of tobacco use and
the benefits of cessation of tobacco use.
Require dissuasive measures on tobacco products
Provision is made in the Bill for regulations to be made that relate to the appearance
and physical features of tobacco products.
Dissuasive measures on tobacco products could be implemented as on-product health
warnings, such as 'Causes stroke', or through the use of standardization of colour
aiming to dissuade people from tobacco use. Like their packaging, cigarettes
themselves can be a powerful communication tool. Products incorporating dissuasive
26
Blackwell A, Lee I, Scollo M, Wakefield M, Munafo M, Marteau T (2019) 'Should cigarette pack sizes be capped?',
Addiction; Lee I, Blackwell AKM, Hobson A,Wiggers D, Hammond D, De-loyde K, et al (2023) 'Cigarette pack size and
consumption: a randomized cross-over trial' 118(3):489-99, Addiction.; Persoskie A, Donaldson EA, Ryant C (2018) 'How
tobacco companies have used package quantity for consumer targeting', 28(4):365-373, Tobacco Control.
7
measures better communicate the risks and harms of smoking, compared to a standard
product, in a manner that cannot easily be avoided.27 Research indicates that cigarettes
with dissuasive measures are perceived as significantly less appealing, more harmful,
and less likely to encourage trial.28 Cigarettes with on-product warnings and that are
unattractively coloured can impact perceptions of product harm, quality, taste, and
desirability.29 They are also likely to reach a group of people who smoke who are now
less responsive to plain packaging and other health warnings.30
Like their packaging, cigarettes themselves can be a powerful communication tool.
Prohibit the use of brand and variant names that falsely imply reduced harm
The Bill includes a prohibition on the use of certain words or characters ('prohibited
terms') in relation to brand names or variant names of tobacco products.
These prohibited terms will include terms that imply no harm or reduced harm, a term
that refers to, or implies, a positive quality, a colour, a term that refers to a filter, a
non-alphabetical character (other than "&"), a numeral (in any form) or an ideograph,
a term that refers to, or implies, positive health effects, a term that suggests the
inclusion of a prohibited ingredient.
Colour descriptors mislead consumers in relation to perceptions of harm, often
evoking previous packaging imagery. In 2005, the Australian Competition and
Consumer Commission found that the use of terms such as 'mild' or 'light' or
displaying yields for tar, nicotine and carbon monoxide are misleading and contravene
the Trade Practices Act 1974. Following the removal of these terms and yields, the
tobacco industry began using colours in its variant names to express the 'strength' or
purported nicotine and tar content.31 This reinforced the established association
between packaging colour and taste or strength32, and perceptions that some products
are less harmful than others.
27
Hoek J, Robertson C (2015) 'How do young adult female smokers interpret dissuasive cigarette sticks? A qualitative
analysis.'5(1):21-39, Journal of Social Marketing. [1] Hoek J, Gendall P, Eckert C, Louviere J (2015) 'Dissuasive cigarette
sticks: the next step in standardised ('plain') packaging?' Tob Control doi: https://doi.org/10.1136/tobaccocontrol-2015-
052533 [published Online First: Epub Date]
28
Moodie C, Gendall P, Hoek J, MacKintosh AM, Best C, et al (2017) 'The response of young adult smokers and non-smokers
in the united kingdom to dissuasive cigarettes: An online survey.' Nicotine & Tobacco Research; Hoek J, Gendall P, Eckert C,
Louviere J (2015) 'Dissuasive cigarette sticks: the next step in standardised ('plain') packaging?' Tob Control doi:
https://doi.org/10.1136/tobaccocontrol-2015-052533 [published Online First: Epub Date]
29
K Gallopel-Morvan et al (2019) 'Consumer Perceptions of Cigarette Design in France: A Comparison of Regular, Slim, Pink
and Plain Cigarettes' 21(7): 911-917, Nicotine & Tobacco Research ; C Moodie et al (2019) 'The Response of Young Adult
Smokers and Non-smokers in the United Kingdom to Dissuasive Cigarettes: An Online Survey' 21(2): 227-233, Nicotine
Tobacco Research
30
Hoek J, Gendall P, Eckert C, Louviere J (2015) 'Dissuasive cigarette sticks: the next step in standardised ('plain') packaging?'
Tob Control doi: https://doi.org/10.1136/tobaccocontrol-2015-052533.; Drovandi A, Teague PA, Glass B, and Malau-Aduli B
(2019) 'Australian University Student Perceptions of Health Messages on Cigarette Sticks'1-9, Health Commun.
31
Bayly, M, Freeman, B, Scollo, M (2016) '10.8 Trends in products and packaging' In Scollo, MM and Winstanley, MH
[editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; Greenland SJ (2016), 'The Australian
experience following plain packaging: the impact on tobacco branding' 111(12): 2248-58, Addiction.
32
Bayly, M, Freeman, B, Scollo, M (2016) '10.8 Trends in products and packaging.' In Scollo, MM and Winstanley, MH
[editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; Available from
http://www.tobaccoinaustralia.org.au/chapter-10-tobacco-industry/10-8-trends-in-products-and-packaging; Bansal-Travers M,
Hammond D, Smith P, and Cummings K (2011) 'The impact of cigarette pack design, descriptors, and warning labels on risk
perception in the US.' 40(6):674-82, American Journal of Preventive Medicine; Bansal-Travers M, O'Connor R, Fix B, and
Cummings K (2016) 'What do cigarette pack colors communicate to smokers in the US?' 40(6):683-9, American Journal of
Preventive Medicine; Lempert L and Glantz S (2016) 'Packaging colour research by tobacco companies: the pack as a product
characteristic' Tobacco Control.
8
Lighter coloured packs were used to indicate lower nicotine and tar, while bolder
colours indicated higher nicotine and tar, and green would often indicate menthol.33
For example, Winfield Filter 16mg became Winfield Red, Winfield Extra Mild 12mg
became Winfield Blue, and Winfield 2mg became Winfield White. These colour
associations remain post the introduction of plain packaging.
Following the implementation of plain packaging requirements, a number of brands
that did not previously use a colour descriptor in the variant altered their variant name
to include a colour. This often aligned with the colour of the original packaging. For
example, Dunhill Infinite, which used white packaging, became Dunhill Infinite
White; and Peter Jackson Rich, which used gold packaging, became Peter Jackson
Rich Gold.34
Research shows that colour descriptors shape product perceptions, including in a plain
packaging environment.35 Research indicates that 'white' is perceived as a less
harmful colour descriptor, as having lower tar, and may be chosen over other colours
by smokers concerned about health. It also indicates that 'red' and 'black' colour
descriptors are perceived as being more harmful, and 'blue' as particularly attractive.36
Other research indicates that 'gold' and 'silver' can be perceived as significantly less
harmful, and as easier to quit smoking.37International research indicates that focusing
solely on the removal of descriptors such as 'light' or yields has not been successful in
reducing smoker misperceptions that some cigarettes are less harmful than others.
This is because people who smoke have been shown to increasingly rely on other
descriptors, such as colour terms, to differentiate brands and products perceived to be
of less harm or reduced risk.38
Research indicates that colour descriptors on tobacco packaging influence consumer
perceptions of harm, attractiveness, and appeal.39 The research shows that the use of
colour promotes tobacco products by means that are false, misleading, deceptive or
likely to create an erroneous impression about the item's characteristics, health
effects, hazards or emissions.
33
Bayly M, Freeman B, Scollo M (2017) '10.8.2.1 Packaging that conveys varying levels of harm.', Tobacco in Australia,
accessed 13 November 2020; Greenland SJ (2016) 'The Australian experience following plain packaging: the impact on
tobacco branding' 111(12): 2248-58, Addiction; Bansal-Travers M., Hammond D., Smith P., Cummings M (2011) 'The
impact of cigarette pack design, descriptors, and warning labels on risk perception in the US.' 40:674-82.67, Am J Prev Med;
Henriksen L (2012) 'Comprehensive tobacco marketing restrictions: promotion, packaging, price and place.' 21:147-53.68,
Tob Control; Moodie C., Ford A (2011) 'Young adult smokers' perceptions of cigarette pack innovation, pack colour and plain
packaging.' 19:174-80, Australia's Market J.
34
Greenland SJ (2016) 'The Australian experience following plain packaging: the impact on tobacco branding' 111(12): 2248-58,
Addiction.
35
Mitchell D, Moodie C, Critchlow N, Bauld L (2019) ' Adolescents' perceptions of standardised cigarette packaging design and
brand variant name post-implementation: a focus group study in Scotland', 19:1227, BMC Public Health;
Felicione NJ, Norton KJ, Bansal-Travers M, Rees VW, Cummings KM, O'Connor RJ (2021) 'Smokers' perceptions of
different classes of cigarette brand descriptors.' 7:9, Tob Prev Cessat. doi:10.18332/tpc/131243
37
Hammond et al (2009) 'Cigarette pack design and perceptions of risk among UK adults and youth' Volume 19, Issue 6, 631-
637, European Journal of Public Health.
38
Yong H, Borland R, Cummings KM, Lindblom EN, Li L, Bansal-Travers M, O'Connor RJ, Elton-Marshall T, Thrasher JF,
Hammond D, Thompson ME, Partos TR (2016) 'US Smokers' Beliefs, Experiences and Perceptions of Different Cigarette
Variants Before and After the FSPTCA Ban on Misleading Descriptors Such as "Light," "Mild," or "Low".' 18(11):2115-2123,
Nicotine Tob Res.. doi: 10.1093/ntr/ntw107. Epub 2016 Apr 15. PMID: 27083215; PMCID: PMC5055739.
39
Felicione NJ, Norton KJ, Bansal-Travers M, Rees VW, Cummings KM, O'Connor RJ (2021), 'Smokers' perceptions of
different classes of cigarette brand descriptors.' 7:9, Tob Prev Cessat. doi:10.18332/tpc/131243; Hoek J, Gendall P, Eckert C,
Kemper J, Louviere J (2016) 'Effects of brand variants on smokers' choice behaviours and risk perceptions', 25:160-165,
Tobacco Control; Mitchell D, Moodie C, Ford A, MacKintosh AM, Critchlow N & Bauld L (2021) 'Youth perceptions of
Brand variant names on standardised cigarette packs, and responses to replacing these with numbers: a focus group study in
Britain.' Drugs: Education, Prevention and Policy, doi: 10.1080/09687637.2021.1902479
9
Marketing literature indicates that colour is the first cue that consumers use in visual
brand recognition, and that it influences brand awareness and recall, image
perception, product choice and purchase intent. Brand colour is itself a semiotic cue,
evoking emotions and memories and expressing brand personality.40Research has
found that removing colour hues from tobacco packaging has reduced the appeal and
positive connotations of tobacco brands.41 However, colour psychologists suggest that
colour has the same important role in communication regardless of whether actual
colour hues or the corresponding words are used.42 In this regard the potential impact
of plain packaging appears to have been offset by the addition of colour names as
descriptors.43
Terms that refer to a filter will be prohibited. The presence or absence of a filter can
influence consumer perception of health risk. Filters are marketed as a harm reduction
technology, despite having no health benefits.44 A majority of current and former
smokers believe that cigarettes with filters are safer than those without them.45 In
addition, cigarette packages with references to filtration (such as advanced filter
technology and activated charcoal filter) are perceived by youth as less harmful46.
Prohibiting filter references therefore reduces scope for branding to influence harm
perceptions.
Prohibiting the use of non-alphabetic characters, numerals or ideographs (emojis) is
intended to help future-proof legislation by limiting the ability to use such features in
brand and variant names. The ability for industry to use brand and variant names as a
promotional tool will be reduced following the restrictions on using the other
prohibited terms specified in items 1-4 and 6-7 of clause 73.
Future innovative ways for brand and variant names to be used as a promotional tool
may involve the use of non-alphabetical characters, numbers or ideographs that could
increase appeal through novelty, relatability or by adding personality. For example,
introducing brand or variant names with a percentage (10%, 20%, X% etc.), using a
rating system (!! vs !!!, *** vs **** etc.), replacing letters in a word (CASH vs
C4$H) or a social media tag (#cool). The use of alpha numeric brands can have an
impact on consumer choices.47 Moreover, the use of numerals can have the effect of
suggesting that one product is of premium quality (for example, number '1') or that it
has a certain strength level associated with the number (for example 25%). Numbers
can also have cultural associations about such things as luck or good fortune (for
example, the brand names 'Lucky 7' or '888').
40
Greenland, S. J. (2016) The Australian experience following plain packaging: the impact on tobacco branding. 111: 2248-
2258, Addiction, doi: 10.1111/add.13536
41
Germain D., Wakefield M. A., Durkin S. J. (2010) 'Adolescents' perceptions of cigarette brand image: does plain packaging
make a difference.' 46:385-92.57, J Adolesc Health.
42
Caivano J. L. (1998) 'Color and semiotics: a two-way street.' 23:390-401, J Adolesc Health.
43
Greenland, S. J. (2016) 'The Australian experience following plain packaging: the impact on tobacco branding.' 111: 2248-
2258. doi: 10.1111/add.13536, Addiction
44
Silva A, et al (2021) 'Health without filters: the health and environmental impacts of cigarette filters.' 26(6):2395-401, Cien
Saude Colet. doi: 10.1590/1413-81232021266.23692019
45
O'Connor RJ, Bansal-Travers M, Cummings K.M, Hammond D, Thrasher JF, Tworek C (2015) 'Filter presence and tipping
paper color influence consumer perceptions of cigarettes', BMC Public Health, 15:1279, doi.org/10.1186/s12889-015-2643-z.
46
Czoli C and Hammond D (2014) 'Cigarette packaging: youth perceptions of "natural" cigarettes, filter references, and
contraband tobacco'54(1):33-29, Journal of Adolescent Health
47
Bayly, M, Freeman, B, Scollo, M. (2016) '10.8 Trends in products and packaging.' In Scollo, MM and Winstanley, MH
[editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria.
10
The use of percentages or other non-alphabetical characters in brand names and
variant names could create an erroneous impression about characteristics, health
effects, hazards or emissions. Research has also found that hashtags (#) have been
used to promote tobacco campaigns through sponsored content on social media. This
extends to in person events, with reports of parties hosted by tobacco companies in
Australia promoted through the use of hashtags related to these global advertising
campaigns. Allowing brand or variant names to include a hashtag would allow for
direct connections between the product and sponsored content/events.
Non-alphabetic characters can also be used to create emoticons, [:) or :p etc.] which
are recognised to build emotional connections and mimic face-to-face interactions.
Emojis in particular look like images, or icons, but they are not. They are characters
from the UTF-8 (Unicode) character set. Research shows that the use of emojis is
particularly appealing to young consumers in social media and communications.48 The
use of emojis can cross cultural language barriers and have significant emotional
impact.49 Emoji users reported they lighten the mood of a conversation and make
conversations more fun, with people who use emojis considered friendlier, funnier
and cooler than those who do not.50 Marketing and behavioural research has shown
that emojis have positive effect on consumers and purchasing.51 Emojis have been
shown to produce a positive emotional outcome52, with consumers more likely to
purchase an item advertised with an emoji compared to one which does not.53 Studies
have shown that emojis make advertising less intrusive54, improve return on
advertising campaigns, increase the likelihood of advice being taken in certain
situations55 and can soften negative messages.56
'A term that refers to, or implies, positive health effects' will also be a prohibited
term. The research shows that the use of a term that refers to health effects such as
those used as examples in the table in clause 73 "organic, natural and additive free"
can be false, misleading, deceptive, or likely to create an erroneous impression about
the item's characteristics, health effects, hazards or emissions. This research shows
that consumers often perceive cigarettes with health-oriented terms such as 'organic',
'natural' and 'additive-free' as less harmful than other cigarettes.57 This is despite
48
Ember, S. (2015) 'Brands Woo Millennials With a Wink , an Emoji or Whatever It Takes.' In The New York Times (pp. 18-
21).
49
Alshenqeeti, H. (2016) 'Are emojis creating a new or old visual language for new generations? A socio-semiotic study.' 7(6),
56-69, Advances in Language and Literary Studies, doi:10.7575/aiac.alls.v.7n.6p.56; Adobe Inc. (2022). Future of Creativity:
2022 U.S. Emoji Trend Report. https://blog.adobe.com/en/publish/2022/09/13/emoji-trend-report-2022
50
Das, G., Wiener, H. J. D., & Kareklas, I. (2019) 'To emoji or not to emoji? Examining the influence of emoji on consumer
reactions to advertising.' 147-156, Journal of Business Research, 96.
https://doi.org/https://doi.org/10.1016/j.jbusres.2018.11.007
51
Huang, A. H., Yen, D. C., & Zhang, X. (2008) E'xploring the potential effects of emoticons.' 45(7), 466-473, Information and
Management, https://doi.org/10.1016/j.im.2008.07.001
52
Mladenović, D., Koštiál, K., Ljepava, N., Částek, O., & Chawla, Y. (2023) 'Emojis to conversion on social media.', 47(3),
977-994, International Journal of Consumer Studies. https://doi.org/10.1111/ijcs.12879
53
Huang, A. H., Yen, D. C., & Zhang, X. (2008). Exploring the potential effects of emoticons. 45(7), 466-473, Information and
Management, https://doi.org/10.1016/j.im.2008.07.001
54
Lee J, Kim C, Lee KC (2021) 'Investigating the Negative Effects of Emojis in Facebook Sponsored Ads for Establishing
Sustainable Marketing in Social Media.' 13(9):4864 Sustainability. https://doi.org/10.3390/su13094864
55
Duan, J., Xia, X., & Van Swol, L. M. (2018) 'Emoticons' influence on advice taking.' 79, 53-58, Computers in Human
Behavior,.
56
Wang, W., Zhao, Y., Qiu, L., & Zhu, Y. (2014) 'Effects of emoticons on the acceptance of negative feedback in computer-
mediated communication.' (8), 454-483, Journal of the Association for Information Systems, 15
https://doi.org/10.17705/1jais.00370
57
O'Connor R, Lewis M, Adkison S, Bansal-Travers M, Cummings K (2017) ' Perceptions of "Natural" and "Additive-free"
cigarettes and intentions to purchase' 44(2):222-226, Health Education and Behavior; Pearson J, Moran M, Delnevo C, Villanti
A, Lewis M (2019) 'Widespread belief that organic and additive-free tobacco products are less harmful than regular tobacco
products: results from the 2017 US Health Information National Trends Survey', 970-973, Nicotine and Tobacco Research;
11
there being no empirical evidence that smoking organic cigarettes affects health
outcomes differently than smoking conventional cigarettes. Further, the use of the
'organic' descriptor may also increase consumption among groups due to a perception
of lesser harm.
International obligations
The measures contained in these Bills will give effect to certain obligations that
Australia has as a party to the World Health Organization (WHO) Framework
Convention on Tobacco Control (2003) (FCTC), an evidence-based treaty. The WHO
FCTC is in Australian Treaty Series 2005 No. 7 ([2005] ATS 7) and could in 2023 be
viewed in the Australian Treaties Library on the AustLII website
(http://www.austlii.edu.au).
Consultation
Three broad consultations have taken place to inform the thematic review process and
development of this legislation. An online public consultation (January-May 2019)
followed by a series of stakeholder workshops (May-July 2019), and consultation on
exposure draft legislation (May-July 2023) involving both written public consultation
and face-to-face stakeholder workshops.
Feedback from the 2019 consultations established there is a need for ongoing
regulation to achieve the Australian Government's objectives with respect to tobacco
control, and that regulatory improvements should be made. Options arising from the
thematic review consultations were included in the development of the Impact
Analysis and informed the development of the exposure draft of the Public Health
(Tobacco and Other Products) legislation package (Exposure Draft).
The Exposure Draft was released for public comment between 31 May 2023 and
14 July 2023. Targeted consultation workshops were conducted by external
consultants, Allen and Clarke Consulting, with public health experts and First Nations
representatives to understand the potential impact of the Exposure Draft. Tobacco
industry and retail representatives were invited to attend targeted consultation sessions
with Allen and Clarke Consulting, to understand implementation considerations.
Consultations were undertaken consistent with Article 5.3 of the World Health
Organization WHO FCTC.
The Department developed the proposed measures outlined in the Impact Analysis
drawing on the public consultation, reviews conducted as part of the development of
the NTS, international best practice and the available evidence base.
Following analysis of the feedback and submissions received during public
consultation, a number of changes were made to the Bills including:
o Amending the definition of 'e-cigarette' to ensure that vaping devices which
resemble toys, foods, drinks, cartoon characters, animals, musical instruments etc.
are captured by the advertising and sponsorship prohibition;
Sanders-Jackson A, Tan A, Yie K (2018) 'Effects of health-oriented descriptors on combustible cigarette and electronic
cigarette packaging: an experiment among adult smokers in the United States', 27:534-541 Tobacco Control; Pearson JL,
Watanabe M, Sanchez J, Mann S, Drake C, Mercincavage M. (2022) 'The "Organic" Descriptor and Its Association With
Commercial Cigarette Health Risk Expectancies, Subjective Effects, and Smoking Topography: A Pilot Human Laboratory
Study.'24(1):69-76, Nicotine Tob Res. doi: 10.1093/ntr/ntab151. PMID: 34286827; PMCID: PMC8666116.
12
o Changing the commencement date of the new mandatory reporting period from
1 July 2024 to 1 July 2025 in response to feedback from tobacco industry
stakeholders regarding the time required to establish new administrative systems;
o Amending the definition of 'prohibited term' to ensure that brand and variant
names cannot include terms such as 'cool', 'extra', or 'fresh' which imply a
positive quality;
o Updating advertising prohibition exceptions for journalism, to prevent
advertorials where the person that publishes the material receives a benefit of any
kind for publishing the material, from a manufacturer, importer, distributor or
retailer of tobacco products; and
o Removing the requirement to report on research and development activities, in
response to feedback provided by tobacco industry stakeholders regarding undue
burden on reporting entities.
Financial Impact Statement
Costs to government to implement the proposed measures are minimal and are
attributable to compliance activities including compliance testing of product
ingredients. There may be initial costs associated with authorised officer training and
education activities to support implementation of the new measures such as
publication of fact sheets to assist compliance and inform consumers and retailers of
new requirements. In the long term there should be compliance savings as a result of
the consolidation of relevant compliance agencies.
Costs for the measures will be met through existing resources of the Department of
Health and Aged Care.
Impact Analysis
An executive summary of the Impact Analysis is provided below as an Addendum to
this explanatory memorandum. The full version of the Impact Analysis is available on
Office of Impact Analysis website here. https://oia.pmc.gov.au/published-impact-
analyses-and-reports
13
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Public Health (Tobacco and Other Products) Bill 2023
Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023
These Bills are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bills
On 10 May 2018, the (then) Attorney-General approved the Thematic Review
(review) of Commonwealth tobacco control legislation and made the Legislation
(Tobacco Instruments) Sunset-altering Declaration 2018 to align the sunsetting of the
Tobacco Plain Packaging Regulations 2011 (TPP Regulations) and Tobacco
Advertising Prohibition Regulation 1993 (TAP Regulation) to 1 April 2022.
On 22 March 2021, the (then) Assistant Attorney-General issued the Legislation
(Deferral of Sunsetting-Tobacco Instruments) Certificate 2021, extending the
sunsetting date of the TAP Regulation and TPP Regulations by 24 months from
1 April 2022 to 1 April 2024.
The legislation that was the subject of the review undertaken by the Department of
Health and Aged Care (the Department) consists of the Tobacco Advertising
Prohibition Act 1992 (TAP Act), the Tobacco Plain Packaging Act 2011 (TPP Act),
the TAP Regulation and the TPP Regulations.
The review involved a comprehensive analysis to modernise the Commonwealth
legislative framework for tobacco control, ensuring it remains fit-for-purpose,
addresses current gaps and limitations and will assist with tackling future challenges
in tobacco control. This includes identifying options to enable Australian laws to keep
up with the changing tobacco and technological environment, to address challenges
such as new and emerging products and marketing strategies.
Following the review process, the Minister for Health and Aged Care announced the
intention to implement the reforms contained in the Bill on 30 November 2022. The
reforms provide for deregulation opportunities by repealing redundant aspects of the
current legislation and through streamlining or consolidating multiple Acts and
regulations. The consolidation of the tobacco control legislation will help to
strengthen the Commonwealth tobacco control framework to meet current and
emerging issues.
14
Public Health (Tobacco and Other Products) Bill 2023
The Public Health (Tobacco and Other Products) Bill 2023 (the Bill) consolidates the
existing Commonwealth tobacco framework into one Bill with associated regulations
thereby streamlining the operation of the legal framework. It modernises and
simplifies the existing provisions and introduces new measures to support the
objective of discouraging smoking and seeks to restrict the advertising and promotion
of vaping and e-cigarette products.
Consistent with the Government's announcement on 30 November 2022, the Bill
consolidates the TAP Act, TPP Act, TAP Regulation, TPP Regulations, Competition
and Consumer (Tobacco) Information Standard 2011 (the Tobacco Information
Standard), Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk
Cigarettes) Regulations 2008, and the Trade Practices Act 1974--Consumer
Protection Notice No. 10 of 1991--Permanent Ban on Goods.
The Bill and associated regulations will:
• update and improve graphic health warnings on packaging;
• require health promotion inserts in packs and pouches;
• capture e-cigarettes in advertising restrictions;
• standardise the size of tobacco packets and products;
• prevent the use of specified ingredients in tobacco products;
• standardise the design and look of filters in cigarettes;
• limit the use of appealing brand and variant names that imply reduced harm;
and
• introduce reporting requirements for the tobacco industry to disclose tobacco
product ingredients, tobacco product sales volumes and promotional activities.
Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023
The Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023 (the Consequential Amendments and Transitional
Provisions Bill) deals with consequential and transitional matters arising from the
enactment of the Public Health (Tobacco and Other Products) Act 2023. Schedule 1,
Part 1, repeals the TAP Act and the TPP Act which will be consolidated in the Bill and
the regulations to be made under the Bill. The remaining provisions make
consequential amendments to other Acts and provide application, savings and
transitional provisions.
Legislative context
The tobacco control measures implemented by all Australian governments have
contributed to Australia's smoking prevalence being amongst the lowest in the world.
Despite Australia's success in reducing smoking rates over recent decades and
particularly following the plain packaging laws, tobacco use remains the leading
cause of preventable death and disability among Australians. It is also the greatest
contributor to the health gap between First Nations people and non-Indigenous
Australians.
15
The National Tobacco Strategy 2023-2030 (NTS)58 aims to improve the health of all
Australians by reducing tobacco use. The NTS aims to achieve a national daily
smoking prevalence of less than 10% by 2025 and 5% or less by 2030 in Australia,
and prioritises tackling smoking among First Nations people to reduce the daily
smoking rate to 27% or less by 2030.59 Consistent with these aims there is more that
can be done to further reduce the preventable death and disability caused by tobacco
use. Reforms to the current tobacco framework are needed to effectively respond to
changes in the market and products which influence consumer behaviour and seek to
undermine existing tobacco control measures.60
Additional measures are required to achieve the Government's objective of reducing
smoking prevalence. Evidence shows that when tobacco control efforts stall, so does
the decline in smoking prevalence. Reforms are also necessary to ensure Australia
meets its ongoing obligations under the WHO FCTC.61
International framework
The measures contained in these Bills will give effect to certain obligations that
Australia has as a party to the WHO FCTC.
Objectives
The objects of these Bills are to improve public health by discouraging smoking and
the use of regulated tobacco items; encouraging people to give up smoking, and to
stop using regulated tobacco items; to give effect to certain obligations that Australia
has as a party to the WHO FCTC and to address the health risks posed by vaping and
the use of e-cigarette products.
Human rights engaged
The Bills collectively engage the following rights:
• Right to health--Article 12(2)(c) of the International Covenant on Economic,
Social and Cultural Rights (ICESCR);
• Right to life--Article 6 of the International Covenant on Civil and Political
Rights (ICCPR); and
• Right to freedom of expression--Article 19(2) of the ICCPR.
In addition, the Bill engages the following rights:
• Right to freedom of opinion--Article 19(1) of the ICCPR;
• Right to take part in public affairs or elections--Article 25 of the ICCPR;
• Right to privacy--Article 17 of the ICCPR;
• Right to a fair trial and fair hearing rights--Article 14(1) of the ICCPR; and
• Right to a presumption of innocence--Article 14(2) of the ICCPR.
58
Australian Government Department of Health and Aged Care (2023), 'National Tobacco Strategy 2023-2030'.
59
Australian Government Department of Health and Aged Care (2023), 'National Tobacco Strategy 2023-2030'.
60
S Bialous (2019) 'Impact of Implementation of the WHO FCTC on the tobacco industry's behaviour' 28: 94-96, Tobacco
Control.
61
World Health Organization (2003) 'Framework Convention on Tobacco Control'
16
Right to health
Article 12(2)(c) of the ICESCR requires States Parties to take steps to achieve the full
realisation of the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health, including those steps necessary for the prevention,
treatment and control of diseases. The Committee on Economic, Social and Cultural
Rights considers that this "requires the establishment of prevention and education
programmes for behaviour-related health-concerns ... and the promotion of social
determinants of good health".
The Bill promotes the right to health by aiming, through the achievement of the Bill's
objectives, and as part of a comprehensive range of tobacco control measures, to
contribute to efforts to reduce smoking rates and thereby reduce the significant health,
social and economic effects of tobacco use. The Bill also seeks to address the health
risks posed by vaping and e-cigarette products by restricting advertising and
promotion of e-cigarettes.
Right to life
By seeking to reduce the incidence of smoking and vaping thereby reducing the
associated health risks, the measures contained in the Bill promote the right to life.
Tobacco use causes more deaths than any other behavioural risk factor. Up to two
thirds of deaths in tobacco smokers can be attributed to smoking, and long-term
smokers die an average of 10 years earlier than non-smokers. Exposure to
second-hand smoke is also a cause of preventable death and disability in adults and
children. Tobacco use and exposure among pregnant people and their babies is one of
the most prevalent preventable causes of infant death and illness and of adverse
pregnancy outcomes including preterm birth and still birth.62
Tobacco smoking by youth and young adults has immediate adverse health
consequences and accelerates the development of chronic diseases across the full life
course. It can lead to nicotine addiction that causes young people to continue smoking
for longer, causing increased physical damage. In addition, quitting smoking at any
age reduces the risk of premature death and improves quality of life.
The Bill promotes the right to life by seeking, through the achievement of the Bill's
objectives and the intended effect of the measures as a whole, to deter the uptake of
smoking, and to encourage people who smoke to quit.
Plain packaging and product requirements, and advertising and promotion of
tobacco and e-cigarettes
Right to freedom of expression--Plain packaging and product requirements, and
restriction of advertising and promotion of tobacco and e-cigarettes
The restriction on the appearance of tobacco products and their retail packaging
provided for by the Bill may engage Article 19 of the ICCPR. Article 19(2) of the
ICCPR engages the right to freedom of expression, which extends to any medium,
including written and oral communications, the media, public protest, broadcasting
and artistic works, and may include commercial advertising.
62
Dietz P, England L, Shapiro-Mendoza C, Tong V, Farr S and Callaghan W (2010) 'Infant morbidity and mortality attributable
to prenatal smoking in the US' 39(1): 45-52, Am J Prev Med.
17
Article 19(3)(b) of the ICCPR states that public health is a basis on which the right to
freedom of expression can be limited. This right may be limited as provided for by
law and when necessary for respect of the rights or reputations of others, for the
protection of national security, public order, or of public health or morals. Limitations
must be prescribed by legislation necessary to achieve the desired purpose and
proportionate to the need on which the limitation is predicated.
The Bill contains prohibitions on the advertising of certain products (Chapter 2 of the
Bill) and imposes limitations on what can be placed on the packaging of certain
products (Chapter 3 of the Bill). These prohibitions engage and may limit the right to
freedom of expression, which is protected by Article 19(2) of the ICCPR.
However, these restrictions are directed to the desired purpose of reducing tobacco
use and the health risks posed by vaping and supporting those who already smoke to
quit. This is a legitimate public health objective and accordingly the prohibition is
necessary to achieve the desired purpose and proportionate to the need on which the
limitation is predicated.
Legitimate objective: measure is justified under a permitted limitation
The right to freedom of expression is not absolute. It carries with it special
responsibilities and may be restricted on several grounds. Article 19(3) of the ICCPR
expressly states that the right to freedom of expression may be subject to limitations
necessary for the protection of public health. The limitation (if any) of the right to
freedom of expression in the Bill aims to achieve a legitimate objective - the
protection of public health - by contributing to efforts to reduce smoking rates and to
reduce the associated health risks of smoking and vaping. The Bill aims to achieve
this by, among other things:
− reducing the attractiveness and appeal of tobacco products to consumers,
particularly young people;
− providing for health warnings;
− reducing the ability of the retail packaging of tobacco products to mislead
consumers about the harms of smoking; and
− prohibiting tobacco and e-cigarette advertising and sponsorships.
Reasonable: measure will be effective to achieve the desired ends
Australia's tobacco plain packaging measure (plain packaging and large graphic
health warnings) was ground-breaking, and its impact has been significant in reducing
smoking prevalence and passive smoking in Australia.63 It also has a positive impact
on reducing the appeal of tobacco products, reducing the potential for tobacco
packaging to mislead consumers, and enhancing the effectiveness of graphic health
warnings.64
Under the current tobacco plain packaging laws, all tobacco products must be
packaged in a certain colour, display brand names in certain ways, display the
required text and health warnings and not display logos, brand images or promotional
63
Australian Government Department of Health and Aged Care (2016) Post-Implementation Review of Tobacco Plain
Packaging, Australian Government Department of Health and Aged Care.
64
Australian Government Department of Health and Aged Care (2016) Post-Implementation Review of Tobacco Plain
Packaging, Australian Government Department of Health and Aged Care.
18
text. These laws apply for the sale, offer to sell, supply, packaging or manufacture
tobacco products in Australia.
While the laws have been effective and efficient, they have not kept pace with
challenges in the evolving operating environment, and the thematic review found they
would benefit from updates and amendments.
Since Australia's health warnings were last updated in 2012, new scientific research
has emerged on the effects of tobacco use on health. It is important that health
warnings are updated to reflect this evidence in order to adequately inform
Australians of what is currently known about the health consequences of smoking.
Advertising and sponsorship bans are an effective means to reduce the prevalence and
initiation of tobacco use.65 The proposed reforms include a comprehensive advertising
ban in Australia. The ban would include a broad range of media platforms, extending
to social media for example, and other forms of advertising, promotion and
sponsorship. It is important that the public's exposure to advertising and promotion of
tobacco products which pose a risk to population health is limited.
Proportionate: measure does not impinge on freedom of expression to a greater
degree than is necessary
The restrictions are central to achieving the aims and objectives of the plain packaging
measure. The Department has conducted and continues to conduct market research to
ensure the robustness of any measures adopted. In addition, the advertising and
sponsorship prohibitions are proportionate to the public health risk posed.
The Bill does not prevent tobacco companies from using the name of a person who is
a manufacturer, importer, distributor or retailer of regulated tobacco items. In this
manner, the measures in the Bill limit the right to freedom of expression only to the
extent necessary to achieve the objectives of the measures.
Necessary: no less restrictive means of achieving the desired ends
Tobacco product packaging measures will contribute to efforts to reduce smoking
rates in Australia. The tobacco product and product packaging requirements are not an
alternative to other tobacco control measures but are an integral part of the
comprehensive suite of measures adopted by the Government to respond to the public
health problems caused by tobacco.
Australia's history of progressively more comprehensive and stringent tobacco
regulation is consistent with international best practice as well as steps to combat the
global health epidemic posed by tobacco smoking through implementation of the
WHO FCTC.
The WHO FCTC imposes a comprehensive set of obligations for Parties to implement
and manage tobacco control programmes. Article 11 of the WHO FCTC requires
Parties to adopt and implement effective measures in respect of the packaging and
labelling of tobacco products, including health warnings and other appropriate
messages. Further, Article 13(2) obliges each Party "in accordance with its
constitution or constitutional principles, [to] undertake a comprehensive ban of all
65
Levy DT, Chaloupka F & Gitchell J. (2004) The effects of tobacco control policies on smoking rates: a tobacco control
scorecard. Journal of Public Health Management & Practice, 10(4), 338-53. doi:10.1097/00124784-200407000-00011.
19
tobacco advertising, promotion and sponsorship." Under the WHO FCTC, tobacco
advertising and promotion means any form of commercial communication,
recommendation or action with the aim, effect or likely effect of promoting a tobacco
product or tobacco use either directly or indirectly.
The Bill is consistent with the WHO FCTC implementation guidelines and is
supporting Australia to meet its international obligations.
Right to freedom of opinion, and
Right to take part in public affairs or elections
Political donations
The provisions of the Bill relating to advertising prohibitions and reporting
requirements both relate to freedom of opinion and political donations.
The Bill expressly states that communications that involve government or political
matters, or the publication in certain circumstances of material relating to a news or
current affairs report, are not tobacco advertisements or e-cigarette advertisements.
Similarly, there are exceptions as to what constitutes a tobacco or e-cigarette
sponsorship, including to permit the making of political donations.
Reporting entities are required to submit annual reports relating to, among other
things, marketing and promotional expenditure. The contents of these reports would
be required to include expenditure that constitutes political donations or electoral
expenditure. This supports both transparency and policy development responses.
To the extent that the reporting requirements require reporting on such expenditure
they engage with the right to take part in public affairs and accordingly promote that
right by ensuring that the Bill does not prevent such donations. Rather they merely
require reporting on such donations.
The provisions also engage with the right to freedom of opinion in that they require
reporting on lobbying or expenditure on political advertising by a reporting entity and
additionally permit the Minister to publish that information. This means that the
ability to engage in such communications is subject to the requirement to also report
on such communications. These reporting provisions support both transparency and
policy development activities. The freedom of opinion is not limited because it will
highlight such activity rather than seek to prevent or to prohibit it.
Regulatory powers--triggering the Regulatory Powers (Standard Provisions) Act
2014
The Bill triggers the provisions pertaining to investigation powers in Part 3 of the
Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), which
will enable an authorised officer (as defined in the Bill) to enter premises and exercise
investigative powers where the authorised officer suspects on reasonable grounds that
there may be material on the premises related to the contravention of an offence or
civil penalty provision of the Bill, or an offence against the Crimes Act 1914 or
Criminal Code Act 1995 (Criminal Code) that relates to the Bill.
The Bill also triggers the civil penalty provisions in Part 4 of the Regulatory Powers
Act, which means that the civil penalty provisions of the Bill are enforceable under
that Part of the Regulatory Powers Act.
20
The Secretary of the Department that administers the Bill is authorised to apply to a
relevant court for a civil penalty order requiring a person to pay the Commonwealth a
pecuniary penalty for a contravention of the Bill. Subsections 82(5) and (6) of the
Regulatory Powers Act provide for how the pecuniary penalty in a civil penalty order
is to be determined.
The Bill also triggers the infringement notice provisions in Part 5 of the Regulatory
Powers Act, which will enable an authorised officer to issue an infringement notice
under that Part where he or she believes, on reasonable grounds, that a strict liability
offence has been contravened.
An infringement notice issued under Part 5 of the Regulatory Powers Act is a notice
of a pecuniary penalty imposed on a person. It sets out the particulars of an alleged
contravention of a law. An infringement notice gives the person to whom the notice is
issued the option of paying the penalty set out in the notice or electing to have the
matter dealt with by a court.
Right to privacy
The Bill engages the protection against arbitrary or unlawful interference with
privacy. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an
individual's privacy, family, home or correspondence, and protects a person's honour
and reputation from unlawful attacks. The right to privacy can be limited to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must
be proportionate to a legitimate end and be necessary in the circumstances.
The Bill provides for the collection, use and disclosure of information which may
include personal information. These provisions engage and may limit the right to
privacy. These proposed information gathering and reporting measures are reasonable,
necessary and proportionate to a legitimate objective of supporting the objects of the
Act.
The Bill supports the object provisions by triggering the standard provisions
pertaining to investigation in Part 3 of the Regulatory Powers Act.
Part 3 of the Regulatory Powers Act protects against arbitrary interference with
privacy, as the entry, search and seizure powers cannot be exercised without the fully
informed and voluntary consent of the occupier of the premises, or prior judicial
authorisation in the form of a warrant. Where entry is based on the consent of the
occupier, entry may be restricted to a particular period. Additional safeguards are
provided through provisions requiring authorised persons, and any persons assisting,
to leave the premises if the occupier withdraws their consent.
The Regulatory Powers Act also provides limits on the issuing of an investigation
warrant. For example, an issuing officer may issue an investigation warrant only when
satisfied, by oath or affirmation, that there are reasonable grounds for suspecting that
there is, or may be within the next 72 hours, evidential material on the premises. An
issuing officer must not issue a warrant unless the issuing officer has been provided,
either orally or by affidavit, with such further information as they require concerning
the grounds on which the issue of the warrant is being sought. Such constraints on this
21
power ensure adequate safeguards against arbitrary limitations on the right to privacy
in the issuing of warrants.
If entry is authorised by warrant, the authorised person must provide a copy of the
warrant to the occupier of the premises. This provides for the transparent utilisation of
the powers and mitigates arbitrariness and risk of abuse.
In limited circumstances, clause 155 provides that authorised officers are able to
survey retail shops without identifying themselves. This permits the authorised officer
to enter only the public area of the retail premises, without consent and without
identifying themselves, for the purpose of inspecting retail packaging, purchasing a
product and observing practices. The ability to do this is comparable to the permitted
activity of any member of the public and is a necessary provision as the previous
requirement of needing to obtain consent generally thwarted compliance efforts. The
occupier is still able to refuse entry or to require the authorised officer to leave the
premises.
The investigation powers may only be exercised in certain circumstances set out in the
Regulatory Powers Act. For example, under section 52 of the Regulatory Powers Act,
the power to seize evidence of a kind not specified in a warrant may only be exercised
where:
• the authorised person finds the thing in the course of searching for material of
the kind specified in an investigation warrant, and
• the authorised person believes on reasonable grounds that:
o the thing is evidential material of another kind, or
o a related provision has been contravened with respect to the thing, or
o the thing is evidence of a contravention of a related provision, or
o the thing is intended to be used to contravene a related provision, and
• the authorised person believes on reasonable grounds that it is necessary to
seize the thing in order to prevent its loss, concealment or destruction.
These constraints on the exercise of the powers limit their susceptibility to arbitrary
use or abuse and ensure that their use is reasonable and proportionate in the
circumstances.
Subclauses 154(8) and (9) provide an authorised officer with the power to take
samples of any thing at any premises entered under section 48 of the Regulatory
Powers Act for the purposes of exercising investigation powers. Section 39 of the
Regulatory Powers Act defines evidential material as material that an authorised
person suspects on reasonable grounds is linked to the contravention of a provision.
This provision engages the right to privacy in Article 17 of the ICCPR. To the extent
that it may limit this right, the limitation is provided for by law. It is necessary to
provide for the power in the Bill to take samples in order to pursue the Bill's
legitimate objectives. The power is an essential element of an authorised officer's
investigation powers under the current regulatory powers framework. The power
allows for the testing of samples of tobacco products during the course of an
investigation, which provides for more targeted investigations of businesses that are
potentially breaching the provisions. There is no alternative means of carrying out this
testing other than by taking samples.
22
The power to sample any thing on any premises is restricted in various ways. The
power may not be exercised without an investigation warrant, or the occupier's
consent to enter the premises. The authorised officer can only take samples of
evidential material. Accordingly, the exercise of the power is restricted, and these
restrictions ensure its use is reasonable, necessary and proportionate to the legitimate
objectives of the Bill. The provision is compatible with the protection against arbitrary
or unlawful interference with privacy.
Investigation powers and Article 14 of the ICCPR
The Bill engages the criminal process rights contained in Article 14 of the ICCPR.
Part 3 of the Regulatory Powers Act provides questioning powers to authorised
persons in certain situations. Under subsection 54(3) of the Regulatory Powers Act, an
authorised person who enters premises under an investigation warrant may require
persons on the premises to answer questions or produce documents relating to
evidential material of the kind specified in the warrant. If the person fails to do so, this
is an offence under subsection 54(5) of the Regulatory Powers Act. The penalty is 30
penalty units.
Section 47 of the Regulatory Powers Act makes it clear that in general, the privilege
against self-incrimination and legal professional privilege have not been abrogated by
the provisions pertaining to investigation powers. These protections guarantee the
criminal process rights protected in paragraphs 14(3)(d) and (g) of the ICCPR by
limiting the operation of the questioning powers.
The Bill abrogates the operation of section 47 of the Regulatory Powers Act in
subclause 156(11) by providing that an individual is not excused from answering a
question, or producing a document, under subsection 54(3) of that Act. Part 3 of the
Regulatory Powers Act applies in relation to this Act, on the ground that answering
the question, or producing the document, might tend to incriminate the individual in
relation to an offence. There are also provisions which require individuals to produce
documents and to answer questions. Subclause 153(3) prevents an individual claiming
privilege against self-exposure to a penalty (other than a penalty for an offence) in
relation to giving information, producing a document or answering a question under
subsections 155(2) or 156(2).
These provisions engage the right not to be compelled to testify against oneself or to
confess guilt (i.e, not to self-incriminate) set out in Article 14(3)(g) of the ICCPR. It is
necessary to provide for the abrogation of the self-incrimination privilege in the Bill
due to the difficulties in obtaining relevant evidence. As authorised officers are often
not in a position to observe a transaction that would form the basis of a contravention
of the Bill, such evidence may only be obtained from an individual who is a party to a
transaction. The type of information that may be requested from a tobacco company
would not be obtainable other than from representatives of that company, or people
who engage in dealings with that company. The full application of the privilege
against self-incrimination would compromise investigation and enforcement activities
and would result in retailers of tobacco products unfairly bearing the burden of
compliance with the requirements of the Bill, as retailers are the most readily
accessible point for investigation and enforcement. Retaining the abrogation of the
self-incrimination privilege ensures that evidence is available, which enables
identification of persons who engage in contraventions at an earlier point in the supply
chain.
23
Subclauses 153(2), 154(12) and 154(13) of the Bill restrict the abrogation of the
privilege against self-incrimination and protect an individual from incriminating
themselves in a way that would allow evidence to be used against them in criminal
proceedings. The usual criminal process rights and minimum guarantees apply in
criminal proceedings under the Bill, including the right to a fair and public hearing
and appeal rights to a higher court. Accordingly, the provisions are compatible with
the criminal process rights in Article 14 of the ICCPR.
Civil penalties and Article 14 of the ICCPR
The Bill creates civil penalties for contraventions of the legislation by setting out civil
penalty provisions. The enforcement framework for those civil penalty provisions is
provided by the Regulatory Powers Act.
Triggering the civil penalty provisions of the Regulatory Powers Act could engage the
criminal process rights under Article 14 of the ICCPR if the imposition of civil
penalties is classified as criminal under international human rights law. Determining
whether the penalties could be considered to be criminal under international human
rights law requires consideration of the classification of the penalty provisions under
Australian domestic law, the nature and purpose of the penalties, and the severity of
the penalties.
The penalty provisions of the Bill expressly classify the penalties as civil penalties.
These provisions create solely pecuniary penalties in the form of a debt payable to the
Commonwealth. The purpose of these penalties is to encourage compliance with the
plain packaging regime of the Bill. The civil penalty provisions of the Bill do not
impose criminal liability and do not lead to the creation of a criminal record. The
penalties will generally only be enforced against manufacturers, importers,
distributors and retailers rather than the public (who are unlikely to engage in the
conduct the Bill targets). Further, the imposition of the civil penalties is not dependent
on a finding of guilt. These factors all suggest that the civil penalties imposed by the
Bill are civil rather than criminal in nature.
The civil penalties are not sufficiently severe that they could be considered to be
criminal penalties for the purposes of Australia's human rights obligations.
Accordingly, the criminal process rights provided for by Article 14 of the ICCPR are
not engaged.
The civil penalty provisions in the Bill engage, but do not limit, the right to a fair and
public hearing in civil proceedings provided for by Article 14(1) of the ICCPR. Under
section 82 of the Regulatory Powers Act, civil penalty orders can only be granted by a
relevant court, which must consider all relevant matters before determining the
amount of the penalty. Accordingly, the right to a fair hearing is not limited.
Section 93 of the Regulatory Powers Act provides that if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, the obligation to do that act or thing continues until that act or thing is
done, even if the period has expired or the time has passed. This section further
provides that a person commits a separate contravention of the civil penalty provision
in respect of each day during which the contravention occurs, including the day the
civil penalty order is made (or any later day). This section is necessary to ensure that
failure to comply with an obligation does not excuse a person from meeting that
obligation. As discussed above, section 85 of the Regulatory Powers Act provides that
a relevant court may make a single civil penalty order against a person for multiple
24
contraventions of a civil penalty provision if proceedings for the contraventions are
founded on the same facts, or if the contraventions form, or are part of, a series of
contraventions of the same or a similar character. However, the penalty must not
exceed the sum of the maximum penalties that could be ordered if a separate penalty
were ordered for each of the contraventions. There are no criminal consequences
associated with civil penalty orders for multiple contraventions. For example, as noted
above, they do not carry the possibility of imprisonment.
Therefore, the application of section 93 of the Regulatory Powers Act does not engage
any human rights.
Section 96 of the Regulatory Powers Act provides that, in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, a
person bears an evidential burden where that person wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating the civil
penalty provision. As section 96 of the Regulatory Powers Act only relates to
proceedings for civil penalty orders, not offences, the right to be presumed innocent in
Article 14(2) of the ICCPR is not engaged.
Infringement notices and Article 14 of the ICCPR
Under the Bill, infringement notices can be issued under the Regulatory Powers Act in
relation to strict liability offences. If the person does not pay the amount in the notice,
they may be prosecuted for the offence. Accordingly, the right to a fair and public
hearing in criminal matters provided for by Article 14(1) of the ICCPR is engaged.
Section 104 of the Regulatory Powers Act provides that an infringement notice is
required to state that the person may choose not to pay the penalty, and notify them
that, if they do so, they may be prosecuted in a court for the alleged offence.
Accordingly, the person must always be advised of the consequences of not paying
the penalty, and of their right to have the matter dealt with by a court. As the person
may elect to have the matter heard by a court, rather than pay the penalty, the right to
a fair and public hearing by a competent, independent and impartial tribunal is not
limited.
Right to a fair trial and fair hearing rights--Article 14(1) of the ICCPR; and
Right to a presumption of innocence--Article 14(2) ICCPR protects the right to
be presumed innocent until proven guilty according to law
Offence and civil penalty provisions
Application of both criminal and civil penalties
The Bill's offence provisions contain both criminal penalties and civil penalties.
These include fault-based offences, strict liability offences and civil penalties.
The Commonwealth will decide in each particular case whether to prosecute a person
for a fault-based or strict liability offence, or whether to bring proceedings for a civil
penalty order. A person may only be prosecuted for a fault-based or strict liability
offence, not both, and once convicted of a criminal (fault-based or strict liability)
offence a person cannot be pursued for civil penalties. However, proceedings for a
contravention of a civil penalty provision could be brought prior to a person being
prosecuted for a criminal offence. The safeguards of Part 4 of the Regulatory Powers
Act apply so that there is fair process applied.
25
Penalty levels
Given that there are criminal penalties in the Bill, the Bill engages the right to a fair
trial and fair process. The Bill engages with these rights in a way that is necessary,
reasonable and proportionate.
The maximum penalties are intended to encourage compliance by manufacturers,
importers and other large-scale suppliers participating in the tobacco industry. The
penalties set out in the civil penalty provisions are maximum penalties and it is open
to a court to exercise its discretion to impose a lower penalty.
The penalty levels in Chapters 2-4 have been amended for consistency with the
maximum penalties in the TPP Act. The maximum penalties are:
• for individuals--2,000 penalty units for the fault-based offences and civil
penalty provisions, and 60 penalty units for the strict liability offences; and
• for bodies corporate--20,000 penalty units for the fault-based offences and
civil penalty provisions, and 600 penalty units for the strict liability offences.
The new maximum penalty for corporations is intentionally significant to ensure a
penalty cannot be considered an acceptable cost of doing business and represents a
deliberate departure from the body corporate multiplier rule in A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers (the Guide to
Framing Offences). This is considered appropriate given the need to effectively deter
conduct.
New civil penalty provisions have also been introduced to facilitate compliance with
legislative requirements without the need to resort to criminal prosecution.
A failure to comply with the reporting obligation in this Chapter is treated as a
continuing contravention, consistent with the default position for time-based civil
penalties in section 93 of the Regulatory Powers Act. A continuing contravention
regime has been introduced to incentivise compliance with this Chapter, even if the
relevant deadline for compliance has passed.
The maximum penalty (for the fault-based offence and civil penalty provision) is
consistent with the penalties for similar conduct in comparable legislation, such as the
Corporations Act 2001 section 319 and Schedule 3.
The maximum penalty for a contravention of the reporting requirements, under both
the offence and civil penalty provisions, is 60 penalty units. These maximum penalties
have been selected to incentivise compliance and achieve consistency with the
penalties for similar conduct in comparable legislation, including the Biosecurity Act
2015 section 58 and the Privacy Act 1988 section 66.
Strict liability
Article 14(2) of the ICCPR protects the right to be presumed innocent until proven
guilty according to law.
Strict liability offences engage and limit the presumption of innocence as they allow
for the imposition of criminal liability without the need to prove fault. However, the
defence of mistake of fact is still available to the defendant. This ensures that a person
cannot be held liable if he or she had an honest and reasonable belief that they were
26
complying with relevant obligations. All of the civil penalty and offence provisions
throughout the Bill are also framed as strict liability offences.
Application of strict liability has been set with consideration given to the guidelines
regarding the circumstances in which strict liability is appropriate set out in the Guide
to Framing Commonwealth Offences. Accordingly, the penalties for the strict liability
offences in the Bill do not include imprisonment, and do not exceed 60 penalty units
for an individual. The penalty for corporations is 600 penalty units for strict liability
offences which is justified based on the need to provide a sufficient level of
deterrence for corporations.
Onus of proof
Generally, consistency with the presumption of innocence requires the prosecution to
prove each element of a criminal offence beyond reasonable doubt. An offence
provision which requires the defendant to carry an evidential or legal burden of proof,
commonly referred to as a 'reverse burden', with regard to the existence of some facts
engages the presumption of innocence.
The Bill is consistent with the presumption of innocence because, under the Bill, the
evidential and legal burden for proving that a person has committed an offence rests
with the prosecution, unless a defendant seeks to rely on an available defence. As
such, the Bill does not reverse the evidential burden.
A number of provisions of the Bill provide that the evidential burden of proof rests
with the defendant, where the defendant wishes to rely on an available defence.
Additionally, the matters to be proved under these provisions are matters that would
be in the particular knowledge of the defendant. Once a person has put forward
evidence, the prosecution still retains the legal burden of proving that the person
committed the offence.
The application of strict liability and placing the evidential burden of proof on
defendants to adduce evidence is a reasonable, necessary and proportionate response
and reflects the seriousness of the conduct.
Accordingly, the Bill is consistent with the right to the presumption of innocence in
Article 14(2).
Fair trial and fair hearing rights
Article 14(1) of the ICCPR requires that in the determination of any criminal charge,
everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The right to a fair and public criminal trial
or a fair and public hearing in civil proceedings is one of the guarantees in relation to
legal proceedings. This supports, among other things, that all persons are equal before
courts and tribunals.
Articles 14(2) to 14(7) of the ICCPR establish a series of minimum guarantees,
including that a person is informed promptly of the charge, has adequate time and
facilities to prepare a defence and communicate with counsel, be tried without undue
delay, be tried in person, receives legal assistance, is able to cross-examine witnesses
and have the assistance of an interpreter and is able to have a conviction and sentence
reviewed by a higher court. These protections will apply to all prosecutions under the
Bill.
27
The determination of any charges brought against a person under the provisions in the
Bill, including the offences contained in Part 2.2, Part 2.3, Part 2.4, Part 2.5, Part 3.4,
Part 3.5, Part 4.2 and Part 5.3, will be heard by Australian courts, which are
competent, independent, and impartial tribunals that will ensure that defendants
receive a fair hearing.
The offences in the Bill are subject to double jeopardy safeguards as required by
Article 14(7) of the ICCPR. Each civil penalty provision in the Bill is enforced under
Part 4 of the Regulatory Powers Act. Part 4 of the Regulatory Powers Act in sections
88 to 91 contains provisions which relate to civil and criminal proceedings. These
safeguards are that a court may not make a civil penalty order against a person for a
contravention of a civil penalty provision if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the
conduct constituting contravention (section 88), a stay on civil proceedings where
criminal proceedings are commenced in relation to the same conduct (section 89), it is
possible for criminal proceedings to be commenced after civil proceedings (section
90) and evidence given in civil proceedings is not admissible in criminal proceedings
(section 91).
As section 90 of the Regulatory Powers Act permits both civil and criminal
proceedings, but not multiple criminal proceedings for the same conduct, Article
14(7) of the ICCPR is not infringed. Further, section 88 of the Regulatory Powers Act
provides that a court cannot make a civil penalty order against a person for a
contravention of a civil penalty provision if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the
conduct constituting the contravention.
On the above basis, these provisions align with the rights to minimum guarantees in
criminal proceedings and civil proceedings.
The provisions promote the rights in Article 14 of the ICCPR by ensuring that there
are appropriate safeguards in place to prevent double jeopardy.
Conclusion
The Bill is compatible with human rights because to the extent that it may limit
human rights, those limitations are necessary, reasonable and proportionate.
The Hon. Mark Butler MP, Minister for Health and Aged Care
28
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023
NOTES ON CLAUSES
CHAPTER 1--PRELIMINARY
Part 1.1--Introduction
Clause 1--Short Title
This clause provides that the Bill, once enacted, may be cited as the Public Health
(Tobacco and Other Products) Act 2023.
Clause 2--Commencement
Clauses 1 and 2 will commence on the day the Act receives the Royal Assent.
All other clauses will commence on a day to be fixed by Proclamation. However, if no
day is fixed, they will commence 6 months after the Act receives the Royal Assent.
It is intended that there will be at least a 6-month period between introduction of the
Bill and commencement to enable the industry to familiarise themselves with the
requirements of the legislation before the majority of the provisions commence.
There is also a transition period provided for in the Public Health (Tobacco and Other
Measures) (Consequential Amendments and Transitional Provisions) Bill 2023. This
transition period is separate to the delay in commencement and only applies to
specific provisions.
Clause 3--Objects of this Act
Subclause 3(1) provides that the objects of this Bill are to improve public health by
discouraging smoking and the use of regulated tobacco items; encouraging people to
give up smoking, and to stop using regulated tobacco items; to give effect to certain
obligations that Australia has as a party to the Convention on Tobacco Control (as
defined); and to address the public health risks posed by vaping and the use of
e-cigarette products.
The Bill proposes to address the public health risks posed by vaping and the use of
e-cigarette products by regulating e-cigarette advertising and promotion. This is
because e-cigarettes are considered a gateway into tobacco use and because of the
health risks posed by vaping.
Subclause 3(2) sets out the means for achieving the objects of the Bill and is included
in recognition of the fact that the broad objectives in subclause 3(1) are only
achievable in combination with other tobacco control measures.
Subclause 3(2) is not intended to be an exhaustive list of ways in which public health
may be improved or Australia's obligations as a party to the Convention on Tobacco
Control.
Clause 4--Simplified outline of this Act
Clause 4 sets out a simplified outline of the Act.
Simplified outlines are brief overviews which are included throughout to assist
readers to understand the substantive provisions, but they are not intended to be
comprehensive. It is intended that readers should rely on the substantive provisions.
29
Clause 5--Application of this Act
Clause 5 provides that this Act will have application in every external territory.
This is consistent with the Act being intended to apply in a case where, for example, a
person publishes a tobacco advertisement while overseas and the advertisement is
available to internet end users in Australia.
The standard geographical jurisdiction in 14.1 of the Criminal Code applies to those
offences where there is no express category extension otherwise stated. This means
that if any part of the conduct constituting an offence occurs in Australia or on an
Australian aircraft or ship, the offence applies.
Clause 6--Act binds the Crown
This clause provides that the Bill binds the Crown in each of its capacities but does
not make the Crown liable to be prosecuted for an offence.
Clause 7--Operation of State and Territory laws
This clause provides that the Bill does not limit the operation of State or Territory
laws where those laws are capable of operating concurrently with the requirements of
the Bill. This is because it is expected that Commonwealth and State and Territory
tobacco control laws will continue to operate alongside each other.
Where conduct could be an offence against both the provisions of this Bill and a State
or Territory law, the Bill will not limit the application of that State or Territory law.
Where there is any conflict between the provisions of this Bill and any State or
Territory law, the provisions of this Bill will prevail.
Subclauses 7(4) and (5) provide that there is to be no doubling up of liabilities.
Accordingly, a person will not be liable for an offence or civil penalty under this Act
if the person is found liable for an offence or civil penalty in relation to the same
conduct under any State or Territory law that operates with the Act.
Part 1.2-- Interpretation
Division 1--General definitions
Clause 8--Definitions
This clause contains definitions that are used in the Bill.
'Australia'
The definition of Australia, when used in a geographical sense, includes the external
territories.
'Australian hosting service provider'
Australian hosting service provider has the same meaning as in the Online Safety Act
2021.
In 2023, the Australian hosting service provider was defined in that Act as meaning
"a person who provides a hosting service that involves hosting material in Australia."
'authorised officer'
Authorised officer means a person appointed under 150(1) as an authorised officer.
Authorised officers have monitoring, investigation and enforcement powers for the
purposes of the Bill as set out in Chapter 6.
30
'brand name'
Brand name, in relation to a tobacco product, means the name under which the
tobacco product is sold or supplied, or offered for sale or supply.
A note provides that a brand name must not be or include a prohibited term and refers
the reader to clause 85.
The definition is framed only in relation to tobacco products and does not include
e-cigarette products or tobacco product accessories because the restrictions the
definition is relevant for only apply to tobacco products.
'carriage service provider'
Carriage service provider is defined as having the same meaning as in the
Telecommunications Act 1997.
In 2023, carriage service provider was defined in section 87 of that Act.
'carrier'
Carrier has the same meaning as in the Telecommunications Act 1997.
In 2023, carrier was defined in that Act as meaning "the holder of a carrier licence."
The definition is relevant to clauses 34 and 60.
'cigar'
Cigar is defined as a roll of cut tobacco for smoking, enclosed in tobacco leaf or the
leaf of another plant.
'cigarette'
Cigarette means a roll of cut tobacco for smoking, enclosed in paper.
'Civil penalty provision'
Civil penalty provision has the same meaning as in the Regulatory Powers Act.
In 2023, civil penalty provision was defined in subsection 79(2) of that Act.
'constitutional corporation'
Constitutional corporation means a corporation to which paragraph 51(xx) of the
Constitution applies.
'constitutional trade or commerce'
Constitutional trade or commerce means trade or commerce between Australia and a
place outside Australia; among the States; between a State and a Territory; between
2 Territories; or within a Territory.
'container'
Container is defined non-exhaustively to include any pack, carton, box, tin, packet,
bag, pouch, tube or other container.
'Convention on Tobacco Control'
The Convention on Tobacco Control means the WHO Framework Convention on
Tobacco Control, done at Geneva on 21 May 2003.
31
A note alerts the reader that the Convention is in Australian Treaty Series 2005 No. 7
([2005] ATS 7) and could in 2023 be viewed in the Australian Treaties Library on the
AustLII website (http://www.austlii.edu.au).
'Copyright Act'
Copyright Act means the Copyright Act 1968.
'Designs Act'
This is the Designs Act 2003.
It is primarily relevant to Division 2--Interaction with Trade Marks Act and Designs
Act.
'e-cigarette'
E-cigarette has the meaning provided in clause 11.
A note alerts the reader that the effect of subclause 9(4) is that an e-cigarette that
contains tobacco is not treated as a tobacco product under this Bill.
'e-cigarette accessory'
E-cigarette accessory has the meaning given in clause 12.
'e-cigarette advertisement'
E-cigarette advertisement has the meaning given in clause 43.
'e-cigarette product'
E-cigarette product means an e-cigarette or an e-cigarette accessory.
'e-cigarette sponsorship'
The meaning of e-cigarette sponsorship is provided for in clause 66.
'engage in conduct'
Engage in conduct means do an act; or omit to do an act. This is defined to make clear
that the term covers both acts and omissions.
'health promotion insert'
Health promotion insert has the meaning given by regulations.
'health warning'
Health warning has the meaning given by regulations.
'insert'
A reference to an insert in the Bill means anything other than a tobacco product or the
lining of a cigarette pack placed inside the retail packaging. The word packaging has
its ordinary meaning in this definition.
A note alerts the reader that for the requirements applying to the lining of a cigarette
pack reference should be made to clauses 74 and 75.
'Internet service provider'
Internet service provider has the same meaning as in the Online Safety Act 2021.
In 2023, internet service provider was defined in section 19 of that Act.
32
'late payment fee'
Late payment fee has the meaning given in subclause 174(1).
'mandatory marking'
Mandatory marking has the meaning given by the regulations.
Mandatory markings are broadly equivalent to the existing Tobacco Plain Packaging
Act 2011 (TPP Act) concept of 'relevant legislative requirements'.
The main reasons for defining mandatory marking are so that the marks can (1) be
excluded from requirements to have a matte finish and be coloured Pantone 448C
(where the regulations do not prescribe a default colour for all outer surfaces and
inner surfaces of the retail packaging of tobacco products and both sides of any lining
of a cigarette pack must be the colour known as Pantone 448C), (2) be expressly
required marks on retail packaging and (3) specific provision can be made for them in
the regulations.
The markings required as mandatory will ensure that that packaging for a tobacco
product contains all relevant markings required by legislation, identification of the
product, and the details of the entity in Australia who packaged the product, or on
whose behalf it was packaged.
'mark'
Mark has a meaning affected by clause 15.
'offer'
The meaning of offer, in relation to the sale or supply of a regulated tobacco item or
an e-cigarette product is affected by clause 16.
The definition of offer a tobacco product for sale is provided to clarify that tobacco
products that are available for sale but not visible to the public are being 'offered' for
sale. This addresses the fact that States and Territories have placed restrictions or
bans on display of cigarettes at the point of sale with the result that tobacco products
are available for sale even though they may not be visible.
'onsert'
A reference to an onsert in the Bill means anything that is affixed or otherwise
attached to the retail packaging of a tobacco product. This does not include the lining
of cigarette packs.
This definition has been adapted from the definition used in the Convention on
Tobacco Control.
A note gives the reader an example of an onsert as being a sound chip embedded in
the cardboard of a cigarette pack.
'packages'
The definition provides that the meaning of packages as being a tobacco product for
retail sale is contained in clause 72.
'Patents Act'
Patents Act means the Patents Act 1990.
33
'periodical'
Periodical means an issue (however described and however published) of a
newspaper, magazine, journal, newsletter, or other similar publication, issues of which
are published at regular or irregular intervals. This includes electronically published
periodicals such that the exceptions to what constitutes a tobacco advertisement or e-
cigarette advertisement will also apply to such advertisements published in an
electronic periodical.
'person'
The definition of person has a meaning affected by clauses 168, 169 and 170 which
provide for the application of the Bill to partnerships, unincorporated associations and
trusts.
'pipe tobacco'
The definition of pipe tobacco provides that it means a loose tobacco product that is
intended for use exclusively in a pipe other than a water pipe.
An example is included and provides that loose processed tobacco that is intended for
use in both roll-your-own cigarettes and in a pipe is not pipe tobacco. A note provides
that examples of water pipes are hookahs, narghiles, hubble bubbles and bongs. The
water pipe exclusion means that shisha tobacco is not pipe tobacco.
'prohibited ingredient'
The meaning of prohibited ingredient in relation to a tobacco product, means an
ingredient prohibited under subclause 87(1).
Subclause 87(1) provides for regulations to be made specifying prohibited ingredients
for tobacco products.
'prohibited term'
The definition of prohibited term provides that in relation to a brand name or a variant
name of a tobacco product 'prohibited term' is prescribed in clause 73.
'publish'
The definition of publish is provided in relation to a tobacco advertisement at
clause 30 and in relation to an e-cigarette advertisement at clause 56.
'regulated tobacco item'
Regulated tobacco item means a tobacco product or a tobacco product accessory.
The term is used in provisions where there is a reference to tobacco products and
tobacco product accessories collectively.
'Regulatory Powers Act'
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act
2014.
The Regulatory Powers Act provides for a standard suite of provisions in relation to
monitoring and investigation powers, as well as enforcement provisions through the
use of civil penalties, infringement notices, enforceable undertakings and injunctions.
The Act commenced on 1 October 2014, but only has effect where Commonwealth
Acts are drafted or amended to trigger its provisions.
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'related body corporate'
Related body corporate will have the same meaning as in the Corporations Act 2001.
In 2023 this definition was "in relation to a body corporate, means a body corporate
that is related to the first-mentioned body by virtue of section 50" of that Act.
'reporting entity'
The meaning of reporting entity is provided in clause 130.
The definition is for the purpose of the obligation for manufacturers, importers and
specified retailers of tobacco products to submit reports relating to tobacco product
ingredients, tobacco product volumes, and marketing and promotional expenditure.
'retail packaging'
The meaning of retail packaging is provided in relation to tobacco products in
clause 71.
'Secretary'
Secretary means the Secretary of the Department.
'shisha tobacco product'
Shisha tobacco product is defined to mean a tobacco product that contains molasses
as a significant proportion of the product's ingredients.
Shisha that does not include tobacco will not fall within this definition.
The definition is included to enable shisha tobacco products to be exempted from the
tobacco product requirements in clauses 76 (relating to plain packaging--
standardisation), 82 (relating to plain packaging--inserts and onserts) and 87 (relating
to tobacco products--contents).
'smoking'
Smoking is defined to mean smoking tobacco products.
The Bill makes a distinction between 'smoking' which is attributed to tobacco
products, and 'vaping' which is attributed to e-cigarettes.
'State or Territory enforcement official'
State or Territory enforcement official means a person (a) who is appointed, employed
or engaged by a State or Territory, or by a local governing body established by or
under a law of a State or Territory and (b) who has compliance and enforcement
responsibilities in relation to regulated tobacco items.
'Therapeutic Goods Act'
The meaning of Therapeutic Goods Act is prescribed as the Therapeutic Goods Act
1989 and includes any instruments made under that Act.
'this Act'
The definition makes clear that references to this Act also include the regulations
made under this Act.
'tobacco advertisement'
Tobacco advertisement is defined in clause 20.
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'tobacco product'
Tobacco product is defined in clause 9.
'tobacco product accessory'
Tobacco product accessory is defined in clause 10.
'tobacco product requirement'
Tobacco product requirement means any of the requirements in relation to regulated
tobacco items specified in Part 3.3, prescribed by regulations made under, or for the
purposes of, a provision in Part 3.3 or prescribed by regulations made for the purposes
of subclause 124(1).
The key concept of tobacco product requirement is a compendious term for both the
existing plain packaging rules as well as the new measures included in the Bill such as
pack and product standardisation, restrictions on the use of terms in brand and variant
names, restriction on flavours and additives, regulation of novel design features and
inclusion of health promotion inserts (HPIs), and those elements of the Tobacco
Information Standard, Reduced Fire Risk requirements and statement for cigarettes,
and tobacco product testing measures that will be in the regulations made under this
Act.
'tobacco sponsorship'
The meaning of tobacco sponsorship is provided at clause 39.
'Trade Marks Act'
Trade Marks Act means the Trade Marks Act 1995.
'vaping'
Vaping means inhaling the aerosol or vapour generated or released by an e-cigarette
product.
'variant name'
Variant name in relation to a tobacco product, means the name used to distinguish, by
reference to one or more characteristics, that kind of tobacco product from other
tobacco products supplied under the same brand name.
A note provides that variant name must not be or include a prohibited term and refers
the reader to clause 85.
The definition of variant name has been based on the TPP Act definition but it has
been modified to reflect the increased scope of regulation under this Bill.
Division 2--Key concepts for this Act
Clause 9--Meaning of tobacco product
The Bill will regulate, among other things, tobacco products. Tobacco product is
defined in subclause 9(1) to mean processed tobacco in any form, or any product that
contains tobacco as an ingredient.
A note highlights that loose tobacco for roll-your-own cigarettes is an example of
processed tobacco while a cigar or cigarette is an example of a product that contains
tobacco as an ingredient.
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Subclause 9(2) clarifies that a tobacco product includes those parts of the product that
are not tobacco. An example is provided indicating a tobacco product that is a
cigarette includes the paper, and any filter tip, in the manufactured product.
Subclause 9(3) provides that a tobacco product does not include a wrapper for tobacco
that is in the form of a sheet or tube made from or with tobacco. A note is provided
indicating that such wrappers are treated as tobacco product accessories and refers the
reader to paragraph 10(1)(d).
E-cigarette products are excluded from the meaning of tobacco product as provided in
subclause 9(4) even if the e-cigarette product contains tobacco. This is the case as the
packaging and product requirements of this Bill do not apply to e-cigarettes.
Subclause 9(5) makes clear that a tobacco product does not include a product that is
entered on the Australian Register of Therapeutic Goods maintained under the
Therapeutic Goods Act. This subclause is included to ensure that all "approved
goods" in all five parts of the Register under subsection 9A(3) of the Therapeutic
Goods Act (i.e, registered goods, provisionally registered goods, listed goods,
included biologicals, and included medical devices) are excluded from the definition
of "tobacco product." The scope of the provision is consistent with the current
TPP Act and TAP Act provisions.
Clause 10--Meaning of tobacco product accessory
Clause 10 provides for a basic definition of tobacco product accessory in addition to a
regulation making power.
Subclause 10(1) sets out the meaning of tobacco product accessory in paragraphs (a)
to (f).
Note 1 alerts the reader that tobacco product accessories and tobacco products are
together called regulated tobacco items and refers the reader to the definition of
regulated tobacco items in clause 8. Note 2 provides that wrappers mentioned in
paragraph (d) are sometimes called 'blunts' or 'blunt wraps.'
The consequence of something being a tobacco product accessory rather than a
tobacco product is that only those tobacco product requirements in Part 3.3 and the
regulations that apply to tobacco product accessories will apply. The retail packaging
and other requirements that apply to tobacco products will not apply to tobacco
product accessories.
Subclause 10(2) provides that regulations may prescribe an item to be a tobacco
product accessory for the purposes of the Act.
Subclause 10(3) provides that, before the Governor-General makes such regulations
under subclause 10(2), the Minister must be satisfied that the item is designed or
intended for use with or for the human consumption or use of tobacco products.
Regulations made under subclause 10(2) are to be used to clarify where there is
uncertainty rather than to expand the definition of tobacco product accessory. The
power is intended as a safeguard and to enable clarification on emerging tobacco
product accessories.
Subclause 10(4) provides that tobacco product accessory does not include an e-
cigarette product (even if the e-cigarette product contains tobacco).
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Subclause 10(5) provides that a tobacco product accessory does not include a product
that is entered on the Australian Register of Therapeutic Goods maintained under the
Therapeutic Goods Act.
Clause 11--Meaning of e-cigarette
Clause 11 provides for a basic definition of e-cigarette for the purpose of the Bill, as
well as the ability to prescribe a kind of item to be an e-cigarette where clarification is
considered appropriate and necessary. The clause also excludes certain therapeutic
goods from the definition of e-cigarette.
Subclause 11(1) provides that an e-cigarette means a device (whether or not
containing tobacco or nicotine) that generates or releases, or is designed or intended to
generate or release, by electronic means, an aerosol or vapour for inhalation by its
user in a way that resembles, or produces an experience similar to, smoking.
A note highlights examples of e-cigarettes which include e-cigars, e-hookah pens,
e-pens, e-pipes and vapes.
Subclause 11(2) provides that a device can be an e-cigarette even if it resembles a toy,
food, drink, cartoon character, animal, musical instrument, vehicle or household or
personal object.
There is a regulation making power at subclause 11(3) which provides that regulations
may be made to prescribe an item to be an e-cigarette for the purposes of this Act.
Before the Governor-General makes such regulations, subclause 11(4) provides that
the Minister must be satisfied that it is appropriate to do so.
Subclause 11(5) provides that an e-cigarette does not include a product that is entered
on the Australian Register of Therapeutic Goods maintained under the Therapeutic
Goods Act. This has the effect that the Act does not prohibit the advertising of a
product that is entered on the Register because such a product is not an e-cigarette
product as defined by subclause 11(1). It is intended that advertising of such products
is regulated under the Therapeutic Goods Act. Both this Act and the Therapeutic
Goods Act operate on a product that is a therapeutic good but not entered on the
Register. To the extent that advertising of such goods is allowed under the
Therapeutic Goods Act, this Act does not seek to prohibit it. An e-cigarette that is not
a therapeutic good of any kind is subject to this Act and its advertising is prohibited.
Clause 12--Meaning of e-cigarette accessory
This clause provides a basic definition of e-cigarette accessory as any of the listed
items in paragraphs 12(1)(a) to (d).
Subclause 12(2) provides that regulations may be made to prescribe an item to be an
e-cigarette accessory for the purposes of this Act. Subclause 12(3) provides that,
before the Governor -General makes such regulations, the Minister must be satisfied
that the item is designed or intended for use with or for human consumption or the use
of e-cigarettes.
The regulation making power is appropriately constrained and is intended for use to
clarify where something is an e-cigarette accessory rather than to extend the definition
of e-cigarette accessory.
Subclause 12(4) provides that an e-cigarette accessory does not include a product that
is entered on the Australian Register of Therapeutic Goods maintained under the
Therapeutic Goods Act.
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Division 3--Other interpretation provisions
Clause 13--References to different kinds of tobacco products
Subclause 13(1) provides that in this Bill, tobacco products are of a different kind if
they are sold or supplied under different brand names or different variant names.
Subclause 13(2) provides that if a tobacco product may be consumed or used in more
than one way, this Bill may treat the product as being of different kinds by reference
to the way the product is consumed or used.
An example is included that loose processed tobacco that may be used in both roll-
your-own cigarettes and in a pipe may be treated as different kinds of tobacco
products.
Clause 14--References to manufacturers, importers, distributors and retailers
Clause 14 provides that references, in the Bill, to a manufacturer, importer, distributor
or retailer of regulated tobacco items or e-cigarette products includes a reference to a
person who manufactures, imports, distributes or sells a range of products, only some
of which are regulated tobacco items or e-cigarette products.
This provision is included to ensure that the applicable offence and civil penalty
provisions in the Bill can be enforced against all manufacturers, importers,
distributors and/or retailers of regulated tobacco items or e-cigarette products that
contravene the Bill, including those that manufacture, import, distribute and/or sell a
range of products, only some of which are regulated under the Bill.
Clause 15--References to mark
Subclause 15(1) provides that a reference to a mark includes any line, letter, number,
symbol, ideograph, colour, graphic or image, without limitation.
Subclause 15(2) provides that a mark includes a trademark.
The distinction between mark and trademark that was provided for in the TPP Act has
been removed as such a distinction is no longer necessary.
Clause 16--References to an offer to sell or supply
Clause 16 provides that a reference in this Bill to an offer to sell or supply a regulated
tobacco item or an e-cigarette product includes (without limitation) a reference to
offering the item or product for sale or supply on the internet or from physical
premises, exposing, displaying or advertising the item or product for sale or supply
and making the item or product available for sale or supply even if it is not visible to
the public. This clause applies to both sale and supply from physical locations and
online.
The TAP Act and the TPP Act differ in their description of products offered for sale or
supply but have the same intended effect. This clause 16, and in particular the
adoption of the term "offer to sell or supply", is based on the definition used in the
TPP Act.
The adoption of the term "offer to sell or supply" is not intended to change the scope
of the affected provisions from any sale to retail sale. Rather, the TPP Act provisions
that apply to any sale (i.e., including wholesale) and which have been incorporated
into the Bill will continue to do so. For example, clause 94 (Selling or supplying
tobacco products in non-compliant retail packaging) and clause 102 (Selling or
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supplying non-compliant regulated tobacco items) both apply to any sale and are not
confined to retail sale.
Clause 17--Tobacco products--rebuttable presumption of offer for retail sale
Clause 17 provides that for the purposes of this Bill, unless the contrary is proved, a
tobacco product is presumed to be offered for retail sale or supply if an amount of the
tobacco product is on physical premises (whether or not open to the public) from
which regulated tobacco items are sold by way of retail sale, or supplied to fulfil a
retail sale; and the amount exceeds the amount (if any) prescribed by regulations
made for the purposes of this paragraph.
A note alerts the reader that a defendant bears a legal burden in relation to proving the
contrary and directs the reader to section 13.4 of the Criminal Code.
Paragraph 17(a)(ii) has been included to address the circumstance of the supply of
regulated tobacco items to fulfil a retail sale. It is intended to cover storage
warehouses or similar buildings which are used for storing tobacco products that are
supplied to consumers via mail once the consumer has placed an order on a website.
This clause is relevant for the purposes of the Part 3.4 offences and civil penalty
provisions, and the Part 3.5 offences and civil penalty provisions relating to
constitutional corporations, both of which relate to tobacco product requirements.
The onus of proof appropriately rests on the defendant for proving the contrary. The
presumption relates to only one element of the offence and the corresponding
exception is dependent on the particular knowledge or intent of the defendant (i.e., the
defendant will know why the product is in the shop and should be readily able to
produce evidence of an alternative purpose if there is one). This information is
unlikely to be readily available to the prosecution and would be significantly more
difficult and costly for the prosecution to prove that the intention of the retailer was to
sell the product than it would be for the retailer to rebut this presumption.
It is clear on the face of the legislation that the onus is on the defendant and the
approach is consistent with the Guide to Framing Commonwealth Offences.
Chapter 2--Advertising and Sponsorship Prohibitions
This chapter deals with the prohibition on advertising and sponsorship of regulated
tobacco items and e-cigarette products. The provisions relating to regulated tobacco
items are consolidated from the Tobacco Advertising Prohibition Act 1992 and have
been extended to prohibit the advertising and promotion of e-cigarettes.
Part 2.1--Introduction
Clause 18--Simplified Outline of this Chapter
Clause 18 sets out a simplified outline of Chapter 2.
Part 2.2--Prohibition of tobacco advertisements
Division 1--Offences and civil penalties
Clause 19--Prohibition on publishing tobacco advertisements
Subclause 19(1) provides that a person contravenes this subclause if the person
publishes material or authorises or causes material to be published and the material is
a tobacco advertisement.
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Subclause 19(2) captures conduct where a person intends material to be a tobacco
advertisement despite it not being a tobacco advertisement. It provides that a person
contravenes this subclause if they publish material or authorise or cause material to be
published and the material is not a tobacco advertisement, but the person intends the
material to be a tobacco advertisement; or the person is reckless as to whether the
material is a tobacco advertisement.
Note 1 provides that the physical element of offences against subclauses 19(4) and
19(7) are set out in subclauses 19(1) and 19(2). Note 2 refers the reader to Division 3
for tobacco advertisement exceptions.
Subclause 19(3) provides that subclause 19(1) and (2) do not apply to the publication
of a tobacco advertisement if the publication is permitted by a provision in Division 5.
A note provides that a defendant bears an evidential burden in relation to the
exceptions and refers the reader to subsection 13.3(3) of the Criminal Code.
The evidential burden for the exceptions appropriately rests with the defendant. The
information related to the exception will be particular to the knowledge and
availability of the defendant. Accordingly, it will be less onerous for the defendant,
and overly onerous for the prosecution, to produce evidence in relation to the
exceptions. It would remain the case that the onus would be on the prosecution to
prove the offence.
Subclause 19(4) provides that a person commits an offence if they contravene
subclause 19(1) or 19(2) and subclause 19(5) provides that the fault element for
paragraph (1)(b) is recklessness. The fault element of 'recklessness' is appropriate
because it reflects that an offence will be committed where an appropriate standard of
care has not been adopted to ensure such an advertisement is not published. This
avoids the prosecution having to prove an intention for the material, on the part of the
defendant, to be a tobacco advertisement.
Subclause 19(6) provides that the geographical application of the offence in subclause
19(4) is extended geographical jurisdiction--category B. This category of jurisdiction
is the same as extended geographical jurisdiction--category A, except for the further
possible basis for jurisdiction in subclause 15.2(1)(c)(ii) of the Criminal Code (being
that, at the time of the alleged offence, the person was a resident of Australia). The
defence in subsection 15.2(2) of the Criminal Code is in the same terms as the
defence in subsection 15.1(2). It may be available if jurisdiction is to be exercised on
the basis of residence, but not if jurisdiction is to be exercised on the basis of
nationality.
Subclause 19(7) provides for a corresponding strict liability offence and subclause
19(8) provides for a corresponding civil penalty provision.
Subclause 19(9) provides a defence for individual publication. The defendant will
bear a legal burden (which is made clear on the face of the legislation) in relation to
providing the matters in the defence. This is appropriate due to the difficulty of the
prosecution countering the elements of the defence once raised because they relate to
matters particularly within the knowledge of the defendant, who is best placed to
prove them. The defendant will, if applicable, be readily able to produce evidence that
they were acting by themselves and that they did not receive any benefit for the
publication.
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The defence applies to both the fault-based and strict liability offences as well as
proceedings for a civil penalty.
Division 2--Meaning of tobacco advertisement
Clause 20--Meaning of tobacco advertisement
Subclause 20(1) provides that a tobacco advertisement means any form of
communication, recommendation or action that promotes or is likely to promote,
whether directly or indirectly, smoking or a regulated tobacco item or the use of an
item.
The reference to a 'regulated tobacco item' in subparagraph 20(1)(b) means a
'tobacco product' or a 'tobacco product accessory'.
The definition is based on Article 13(1)(c) of the WHO FCTC. The drafted approach
is not intended to change the scope of the relevant obligation even though it does not
include the word "commercial." The adjective "commercial" would be duplicative
given Division 3 contains a number of exceptions to what constitutes a tobacco
advertisement and Division 5 contains a number of circumstances in which
publication of a tobacco advertisement is permitted. Ultimately, the exclusion of the
term "commercial" will mean that the prosecution will not need to lead evidence of
the commercial character of the communication, recommendation or action. Instead, it
will be a matter for the defendant to adduce evidence that an exception applies or that
the communication was a permitted publication.
Subclause 20(2) provides that a tobacco advertisement may comprise any means, or
combination of means, of communication, recommendation or action (whether visual,
aural or otherwise).
The inclusion of "aural" communication is intended to capture, for example, the use
of music for the promotion of tobacco products.
Subclause 20(3) provides that in determining whether material is a tobacco
advertisement, whether or not the material has an aim or effect in addition to
promoting the matters mentioned in subclause (1) should be disregarded. This
subclause is intended to reflect that a tobacco advertisement does not lose that
character merely because it is calculated to serve other purposes as well. For example,
a tobacco advertisement may also be an e-cigarette advertisement where it is
advertising both products.
Subclause 20(4) provides that material that is or contains any of the things set out in
paragraphs (a) to (d) is presumed to promote smoking, or a regulated tobacco item or
the use of such items.
A note provides that a defendant bears a legal burden in relation to proving the
contrary and refers the reader to section 13.4 of the Criminal Code.
This rebuttable presumption is included to assist in proving the offence of publishing
a tobacco advertisement. The presumption differs to the general exceptions on what
constitutes a tobacco advertisement in Division 3 of Part 2.2, in that the defendant
carries a legal burden of proof in rebutting the presumed matter under the above
subclause, whereas the defendant bears only an evidential burden in relation to the
exceptions in Division 3 of Part 2.2, with the prosecution retaining the legal burden of
proof.
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The inclusion of a rebuttable presumption is justified on the basis that the information
is likely particular to the knowledge of, and readily available to, the defendant
whereas it would be more costly and onerous for the prosecution to prove. For
example, if the use of a trade mark is genuinely in respect of goods that are not
tobacco products, a prosecution is unlikely to be brought and if it is the presumption is
readily rebutted by evidence easily available to the defendant.
The presumption is clear on the face of the legislation and consistent with the Guide
to Framing Commonwealth Offences.
Subclause 20(5) provides that promoting the whole or a part of the name of a person
constitutes a tobacco advertisement if the person is a manufacturer, importer,
distributor or retailer of regulated tobacco items and the person's name appears on a
tobacco product, or on the retail packaging of a tobacco product.
A note provides that the use of the name of a person mentioned in this subclause does
not constitute a tobacco advertisement in certain circumstances and refers to
Division 3 of this Part.
Subclauses 20(6) and (7) make provision for regulations to be made which prescribe
material to be a tobacco advertisement.
Subclause 20(7) sets out the matters of which the Minister must be satisfied before the
Governor-General may make regulations. The matters are set out in paragraphs (a) to
(b) and are that it is appropriate to do so and that making the proposed regulations
would not be inconsistent with Division 3.
The inclusion of the requirement that these matters must be satisfied reflects a
constraint on the regulation making ability consistent with it being intended to be
exercised only to clarify the operation of the Act. The regulation-making power is
intended to allow determination of marginal cases, not the extension of the regime to
something that would otherwise objectively fall outside it. Accordingly, the regulation
making power is appropriately constrained.
Division 3--Tobacco advertisements--exceptions
Division 3 includes a number of exceptions as to what constitutes a 'tobacco
advertisement'. For example, communications that involve government or political
matters, or the publication in certain circumstances of material relating to a news or
current affairs report, are exceptions.
Given their nature as exceptions, it will be a matter for the defendant to adduce
sufficient evidence to put these matters in issue. The information necessary to adduce
should be readily available to a defendant and the prosecution will still need to prove
the offence.
Clause--21 Exception--labelling and packaging
Clause 21 provides for an exception where certain labelling and packaging, provided
it complies with the tobacco product requirements, will not constitute a tobacco
advertisement.
Subclause 21(1) provides that marks that appear on a regulated tobacco item, or on the
retail packaging of a tobacco product, do not, of themselves, constitute a tobacco
advertisement. This will only apply, as subclause 21(2) makes clear, if the regulated
tobacco item, or the retail packaging of the product, complies with the tobacco
product requirements.
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Subclause 21(3) provides that despite subclause 21(1), a communication,
recommendation or action in relation to the regulated tobacco item, or the retail
packaging of the tobacco product, may constitute a tobacco advertisement.
Clause 22--Exception--standard business documents
Subclause 22(1) provides that marks that appear on a document prepared in the
ordinary course of business of a manufacturer, importer, distributor or retailer of
regulated tobacco items do not, of themselves, constitute a tobacco advertisement.
A note alerts the reader that examples of such documents include orders, invoices,
statements and documents relating to procurement and employment.
Subclause 22(2) provides that despite subclause 22(1) a communication,
recommendation or action in relation to the document may constitute a tobacco
advertisement.
Clause 23--Exception--business signage
Subclause 23(1) provides that business signage that appears in, on or near business
premises occupied by a manufacturer, importer, distributor or retailer of regulated
tobacco items that states no more than those things listed in subclause 23(2) does not,
of itself, constitute a tobacco advertisement.
Subclause 23(3) provides that, despite subclause 23(1), a communication,
recommendation or action in relation to business signage may constitute a tobacco
advertisement.
Clause 24--Exception--notice of availability of regulated tobacco items
Clause 24 provides that a statement that regulated tobacco items, or that such items of
a particular kind, are available from a manufacturer, importer, distributor or retailer
does not, of itself, constitute a tobacco advertisement if the statement does not use the
brand name or variant name of any particular kind of tobacco product; or contain
anything that would enable a particular regulated tobacco item, or a range of such
items, to be identified.
Clause 25--Exception--consumer matters
Clause 25 provides that none of the communications listed in paragraphs (a) to (e), of
themselves, constitute a tobacco advertisement. These include such things as recalling
a regulated tobacco item or informing people about their consumer rights in relation to
regulated tobacco items.
Clause 26--Exception--communications about government or political matters
Subclause 26(1) provides that a communication does not constitute a tobacco
advertisement to the extent that it is a communication about government or political
matters. The matters may relate to any level of government in Australia.
Subclause 26(2) provides that the use in such a communication of the whole name of
a manufacturer, importer, distributor or retailer of regulated tobacco items does not, of
itself, make the communication constitute a tobacco advertisement.
The intention is that the exception operates on a communication to the extent that it is
genuinely about government or political matters. It is not intended to exempt
promotional messages that are included in the same communication.
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Clause 27--Exception--artistic works and public interest expression
Clause 27 provides for the circumstances in which artistic works and public interest
expression will not be considered to be a tobacco advertisement. It provides that
neither the performance, exhibition or distribution, in good faith, of an artistic work or
a communication to the extent it is made for any genuine academic, educational or
scientific purpose or any other genuine purpose in the public interest is a tobacco
advertisement.
An academic article which includes a picture of a historic poster for the purpose of
discussing changes in tobacco advertising laws over time, provided it is made for a
genuine academic purpose, will be captured by this exception. Similarly, displaying
an original or replica of a historical item (which depicts a trademark for a tobacco
product) in a museum for a genuine educational purpose will enliven this exception.
By contrast, if a historic poster is displayed in a public venue (such as a café) or a
historical replica is made available for commercial sale, and this is not done for a
genuine academic, educational or scientific purpose, the exception in clause 28 would
not apply.
Clause 28--Exception--journalism
Clause 28 provides for an exception as to what constitutes a tobacco advertisement
where the publication of material can be more appropriately characterised as
journalism. It provides that the publication of material that is or relates to a news
report, or a current affairs report, is not a tobacco advertisement if the conditions set
out in paragraphs (a) to (c) are satisfied.
In particular, clause 28(c) provides that no person may receive a benefit of any kind in
connection with the publication from a manufacturer, importer, distributor or retailer
of tobacco products or a related body corporate of such. A financial contribution by a
tobacco manufacturer to an institute for public interest journalism in return for
advertorial comment would not attract this exception (i.e., it would still be considered
a tobacco advertisement) but where a manufacturer merely has a subscription to the
journal in which the comment appears would attract the exception. This is because the
benefit, being the subscription, is not given in connection with publication of the
advertorial.
Clause 29--Exception--disclosures and acknowledgements by authors
Clause 29 provides for the statements that might be made by an author of a work
published or intended for publication in a periodical which will not be considered to
be a tobacco advertisement. Paragraphs 29(a) and (b) relate to a statement made in the
work to disclose the author's conflict of interest in relation to the work and a
statement made in the work that does no more than acknowledge a contribution made
to the author in connection with the preparation of the work. Neither of these
statements will constitute a tobacco advertisement.
A note highlights that Part 2.3 prohibits tobacco sponsorships.
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Division 4--Meaning of publish a tobacco advertisement
Clause 30--Meaning of publish a tobacco advertisement
The basic definition of publish a tobacco advertisement is contained in subclause
30(1). It provides that a person publishes a tobacco advertisement if the person uses
any means of communication to make the material comprising the advertisement, or
the material containing the advertisement, available to, or accessible by, the public or
a section of the public.
This clause is intended to capture a wide range of communications and to focus on
publishing as making material available to the public. This is appropriate in the
context of evolving means of communication. Examples of publishing a tobacco
advertisement include:
• Publication of an article or feature in a magazine or newspaper glamourising
and/or promoting the sale of a tobacco product.
• Distribution of a flyer or leaflet promoting the sale of a tobacco product.
• Featuring a tobacco product in a film, television program or radio program to
influence the public to its uptake.
• The display of a tobacco product or brand on a publicly available poster,
billboard or boarding.
• Promoting a tobacco product on a streaming platform or on social media.
Subclause 30(2) provides that without limiting subclause 30(1), material is taken to be
made available to, or accessible by, the public or a section of the public if the material
is included in something sold, or offered for sale or supply, to the public or a section
of the public.
Subclause 30(3) relates to targeted online advertising. It provides that, without
limiting subclause 30(1), material is taken to be made available to, or accessible by,
the public or a section of the public if it is made available to, or accessible by, a
person using the internet and it is made available to that person because of the use of
an algorithm, the person's online activity or any other characteristic of that person as
an internet end user.
Subclause 30(4) provides that, without limiting subclause 30(1), material is taken to
be made available to, or accessible by, the public or a section of the public if the
material is made available or accessible at a private event or function to which access
is restricted; and the purpose of the event or function is or includes the promotion of
smoking; a regulated tobacco item or the use of such products; or a manufacturer,
importer, distributor or retailer of such items. The use of the words "is or includes" in
subparagraph 30(4)(b)(i) means that the promotion of smoking; a regulated tobacco
item or the use of such products need not be the primary or principal purpose of the
event.
Subclause 30(5) provides that payment or other consideration is not a factor that is
considered in determining whether material is made available to, or accessible by, the
public or a section of the public at a private event or function.
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Division 5--Tobacco advertisements--permitted publications
The division sets out a range of permitted publications that are exceptions to
prohibited tobacco advertisements.
Clause 31--Permitted publication--physical premises point of sale
Subclause 31(1) permits the publication of tobacco advertisements, at physical
premises where regulated tobacco items are offered for retail sale, which are in
compliance with a State or Territory law. The State or Territory law will need to
contain provisions dealing with the display of advertisements for regulated tobacco
items at or on places where such items are offered for sale to the public and the
display of the advertisement under those provisions is not an offence. The tobacco
advertisement must not be visible from outside physical premises.
Subclause 31(2) provides that a place that has fixed boundaries regardless of whether
these boundaries have walls where goods are offered for retail sale, vending
machines, kiosks, market stalls and motor vehicles are taken to be "physical
premises" for the purposes of subclause 31(1). It follows that point of sale advertising
at each of these places is permitted under the Bill, provided it complies with any
applicable State or Territory law.
This provision is consistent with the intention not to override State and Territory laws
such as point of sale display bans.
Clause 32--Permitted publication--online point of sale
Subclause 32(1) provides that a person may publish a tobacco advertisement in a State
or Territory if the person makes the advertisement available on, or accessible using,
the internet to the public (or a section of the public) and the advertisement is available
to or accessible by the public, or a section of the public, in the State or Territory; the
advertisement provides a facility for a person accessing the advertisement to purchase
a regulated tobacco item; and the publication of the tobacco advertisement is covered
by subclause 32(2).
Subclause 32(2) provides that the publication of a tobacco advertisement is covered
by this subclause if a law of the State or Territory regulates the advertising of
regulated tobacco items on the internet; that law contains provisions expressly dealing
with the publication of advertisements for regulated tobacco items on the internet that
provide a facility for a person accessing the advertisement to purchase a regulated
tobacco item; and the publication of the advertisement complies with those
provisions.
Subclause 32(3) includes provision for tobacco advertisements complying with the
regulations, where the State or Territory does not regulate the conduct, to be
published.
Subclause 32(4) provides a regulation-making power for the content of the regulations
where the publication of the advertisement complies with such regulations referred to
in paragraph 32(3)(e). It provides for the regulations to prescribe such things as the
webpage, or the website, on which tobacco advertisements are displayed. This will
ensure that all online point of sale tobacco advertising is displayed in a uniform way.
For example, regulations made under subclause 32(4) could prescribe the use of a
prominent pop-up or banner at the top and/or bottom of each page of the
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advertisement that includes a health warning message and corresponding graphic; a
requirement to display tobacco product information in a standardised layout and
format using the same font, font size and colour; a requirement to include the
statement "Product prices include all taxes" in the advertisement; or the use of a
system that stops a person from accessing the advertisement unless the person
declares that he or she is at least 18 years old.
Clause 33--Permitted publication--trade communications
Clause 33 provides that a person may publish a tobacco advertisement if the
advertisement is a trade communication, i.e., the person makes the advertisement
available to, or accessible by, a group of people all of whom are involved in the
manufacturer, importation, distribution or sale of regulated tobacco items.
Subclause 33(2) provides that subclause 33(1) applies only in the circumstances set
out in paragraphs (a) to (c).
A note provides that factual information about regulated tobacco items includes brand
or variant name, price, ingredients, availability and package sizing.
Clause 34--Permitted publication--telecommunications and online service
providers
Clause 34 provides a permitted publication exception for telecommunications and
online service providers. This clause provides that a person who is a carrier, carriage
service provider, internet service provider or Australian hosting service provider may
publish a tobacco advertisement if the person is solely acting in the person's capacity
as a carrier, carriage service provider, internet service provider or Australian hosting
service provider.
Clause 35--Permitted publication--periodicals printed outside Australia
Clause 35 provides a permitted publication exception for periodicals printed outside
Australia. This clause provides that a person may publish a tobacco advertisement if it
is contained in a hard copy periodical printed outside Australia, the periodical is not
principally intended for distribution or use in Australia and the conduct constituting
the publication of the advertisement consists of no more than selling or supplying, or
offering to sell or supply, the periodical. For example, newsagents that offer to sell
overseas printed periodicals which contain, among other things, tobacco advertising
will be captured by the exception in clause 35.
Clause 36--Permitted publication--compliance activities
Clause 36 provides a permitted publication exception for compliance activities. This
clause provides that a person may publish a tobacco advertisement if the publication is
(a) made to comply with a request by, or a requirement of, an authorised officer in
relation to administering or enforcing the Act; or (b) authorised or required by any
other law of the Commonwealth or any law of a State or Territory.
Paragraph (a) is intended, in part, to facilitate access by authorised officers to trade
communications such that where a trade communication is requested by an authorised
officer it can be provided in compliance with the request. An example of conduct that
would constitute an exception under paragraph (b) would be, where for example, IP
Australia reproduces a design registered in respect of a regulated tobacco item in
order to comply with a requirement in the Trade Marks Act 1995, of the Designs Act
2003.
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Clause 37--Permitted publication--advertisements during aircraft flight
Clause 37 provides a permitted publication exception for advertisements during
aircraft flights. Subclause 37(1) provides that a person may publish a tobacco
advertisement if the person is operating the flight of an aircraft and the person
publishes the advertisement in the aircraft during the flight.
Subclause 37(2) provides that the exception does not apply if the flight is intended to
be a domestic flight i.e., the flight begins at a place in Australia and is intended to end
at another place in Australia.
Subclause 37(3) provides that, for the purposes of subclause 37(1), each sector of a
flight of an aircraft is taken to be a separate flight.
Part 2.3--Prohibition of tobacco sponsorships
Division 1--Offences and civil penalties
Clause 38--Prohibition on entering into tobacco sponsorships
Subclause 38(1) provides that a person contravenes this subclause if the person
engages in any of the conduct set out in paragraphs 38(1)(a)(i) to (iii) and the conduct
constitutes a tobacco sponsorship.
This involves making a contribution of any kind to another person, entering into an
arrangement, agreement or understanding with another person or making a promise or
gives an undertaking to another person for the purpose of a tobacco sponsorship.
Subclause 38(2) captures conduct where it is intended to be a tobacco sponsorship
even though it is not a tobacco sponsorship. It provides that a person contravenes
subclause 38(2) if they engage in any of conduct set out in paragraphs 38(2)(a)(i)-(iii)
and the conduct does not constitute a tobacco sponsorship, but the person intends the
conduct to be a tobacco sponsorship or is reckless as to whether the conduct is a
tobacco sponsorship.
A note provides that the physical elements of the offences against subclauses 38(4)
and 38(7) are set out in subclauses 38(1) and 38(2) and refers the reader to clause 165.
Subclause 38(3) provides that for the purposes of subclauses 38(1) and 38(2) it does
not matter if the arrangement, agreement, understanding, promise or undertaking is in
writing, express or implied, legally binding or publicly acknowledged.
Subclause 38(4) provides for a fault-based offence and specifies a maximum penalty
of 2,000 penalty units for an individual and 20,000 penalty units for a body corporate.
It is provided in subclause 38(5) that the fault element for paragraph 38(1)(b) is
recklessness. This is consistent with the offence and civil penalty provisions in respect
of the prohibition on tobacco advertising and ensures that an offence is taken to be
committed where an appropriate level of care has not been adopted to ensure that an
offence is not committed.
Subclause 38(6) provides that the geographical application of the offence against
subclause 38(4) is extended geographical jurisdiction--category B. The offence
extends to conduct by an Australian citizen or body corporate outside Australia. For
an Australian citizen or body corporate, it is not a defence that there is no equivalent
local offence (section 15.1 of the Criminal Code).
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Subclause 38(7) provides for a strict liability offence if subclause 38(1) or 38(2) is
contravened and specifies a maximum penalty of 60 penalty units for an individual
and 600 penalty units for a body corporate.
Subclause 38(8) provides for a civil penalty provision if subclause 38(1) or 38(2) is
contravened and specifies a maximum civil penalty of 2,000 penalty units for an
individual and 20,000 penalty units for a body corporate.
Division 2--Meaning of tobacco sponsorship
Clause 39--Meaning of tobacco sponsorship
Subclause 39(1) includes a basic definition for the meaning of tobacco sponsorship.
This definition is based on Article 13(1)(g) of the WHO FCTC. It provides that
'tobacco sponsorship' means any form of contribution (whether financial or
otherwise) to an event, activity or individual that promotes or is likely to promote
smoking or a regulated tobacco item or the use of such an item, whether directly or
indirectly.
A note provides that in some circumstances, a tobacco sponsorship may also
constitute a tobacco advertisement.
Subclause 39(2) permits the making of regulations prescribing a kind of contribution
to be a tobacco sponsorship for the purposes of the Act.
The following are examples of tobacco sponsorship given in the Guidelines for the
implementation of Article 13 of the WHO FCTC. This is not an exhaustive list and is
intended as guidance only. Examples include:
• payment or other consideration in exchange for the exclusive sale or
prominent display of a particular product or particular manufacturer's product
in a retail outlet, at a venue or at an event;
• sale, supply, placement and display of products at educational establishments
or at hospitality, sporting, entertainment, music, dance and social venues or
events; and
• provision of financial or other support by the tobacco industry to venue
operators (such as pubs, clubs or other recreational venues) in exchange for
building or renovating premises to promote tobacco products or the use or
provision of awnings and sunshades.
Division 3--Tobacco sponsorships--exceptions
Clause 40--Exception--political donations and electoral expenditure
Subclause 40(1) provides that a gift or a payment or reimbursement of expenditure
incurred during the course of an election made to a person or entity covered by
subclause 40(2) does not constitute a tobacco sponsorship.
Subclause 40(2) covers the persons and entities set out in paragraphs (a) to (e).
Paragraph (d) is broadly framed to identify an entity that is associated with a person or
entity mentioned in paragraphs (a) to (c). For example, an entity that is the fundraising
arm of a political party as defined in paragraph (c) would fall within the exception in
paragraph (d). By contrast, it is intended that an endowment fund established by a
Member of Parliament for charitable purposes will not be captured by the exception as
it is established in a private capacity and is not directly associated with the Member in
their capacity as a Member so is not intended to be covered by the exception.
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Subclause 40(3) clarifies that terms used in subclause 40(1) that are defined in the law
dealing with electoral matters (within the ordinary meaning of that expression) of the
jurisdiction of the person or entity covered by subclause 40(2) to whom the
contribution is made have the same meaning in subclause 40(1) as they have in that
law. An example provides that, if a gift is made to a member of the Parliament of New
South Wales, and the term 'gift' has a defined meaning in the electoral law of that
State, then 'gift' has the same meaning for the purposes of subclause 40(1). It is
intended that this clause will operate concurrently with applicable State and Territory
electoral laws.
The intention of the provision is not to regulate the circumstances in which political
contributions may be made, as such, but only to make it clear that the prohibition on
tobacco sponsorships is not intended to interfere with the making of such
contributions.
The purpose of clause 40 is to avoid the sponsorship prohibition in the Bill being
found to interfere with the constitutional limitation found in the implied freedom of
political expression.
Clause 41--Exception--statements by authors
Clause 41 provides an exception for statements by authors. This clause provides that a
statement made by an author of a work that is published, or intended for publication,
in a periodical to disclose the author's conflict of interest in relation to the work does
not constitute a tobacco sponsorship. It is intended to capture, for example, the
disclosure of conflicts of interests by authors of research/conference papers or
submissions to government.
Part 2.4--Prohibition of e-cigarette advertisements
Division 1--Offences and civil penalties
Clause 42--Prohibition on publishing e-cigarette advertisements
Clause 42 provides for a prohibition on publishing e-cigarette advertisements.
Subclause 42(1) provides for where a person will contravene the prohibition on
publishing e-cigarette advertisements.
Subclause 42(2) captures conduct where a person publishes material intended to be an
e-cigarette advertisement but it is not an e-cigarette advertisement. It provides a
person contravenes subclause 42(2) if they publish material, or authorise or cause
material to be published, and the material is not an e-cigarette advertisement but the
person intends the material to be an e-cigarette advertisement or is reckless as to
whether the material is an e-cigarette advertisement and any of paragraphs
42(2)(c)(i)-(v) apply.
Note 1 provides that the physical elements of offences against subclauses 42(4) and
42(7) are set out in this subclause and refers the reader to clause 165.
Note 2 provides that for exceptions from what constitutes an e-cigarette advertisement
reference should be made to Division 3.
Subclause 42(3) includes an exception for permitted publications. It provides that
subclauses 42(1) and 42(2) do not apply to the publication of an e-cigarette
advertisement where the publication is permitted by a provision in Division 5. A note
provides that a defendant bears an evidential burden in relation to the matters in this
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subclause and refers the reader to subsection 13.3(3) of the Criminal Code. The
evidential burden appropriately rests with the defendant as the nature of the defences
are such that evidence would be readily available to the defendant and more difficult
for the prosecution to adduce.
Subclause 42(4) provides that a person commits a fault based offence if they
contravene subclause 44(1) or 44(2). The penalty is 2,000 penalty units for an
individual and 20,000 penalty units for a body corporate. Subclause 42(5) provides
that for the purposes of subclause 42(4) recklessness is the fault element for
paragraphs 42(1)(b) and strict liability applies to paragraphs 42(1)(c) and 42(2)(c).
The fault element of reckless is applied in support of the need for an appropriate
standard of care needing to be taken in potentially publishing such material.
Subclause 42(6) provides that the geographical application of the offence in subclause
42(4) is extended geographical jurisdiction--category B. This category of jurisdiction
is the same as extended geographical jurisdiction--category A, except for the further
possible basis for jurisdiction in subclause 15.2(1)(c)(ii) of the Criminal Code (being
that, at the time of the alleged offence, the person was a resident of Australia). The
defence in subsection 15.2(2) of the Criminal Code is in the same terms as the
defence in subsection 15.1(2). It may be available if jurisdiction is to be exercised on
the basis of residence, but not if jurisdiction is to be exercised on the basis of
nationality.
Subclause 42(7) provides for a strict liability offence if the person contravenes
subclause 42(1) or 42(2). The penalty for an individual is 60 penalty units and for a
body corporate it is 600 penalty units.
Subclause 42(8) provides that a person is liable for a civil penalty if they contravene
subclauses 42(1) or 42(2). The civil penalty for an individual is 2,000 penalty units
and 20,000 penalty units for a body corporate.
There is a defence for individual publication provided at subclause 42(9) for
contravention of subclauses 42(1) or 42(2). The defence applies to both criminal and
civil penalties.
A note highlights that the defendant bears a legal burden in relation to the matters in
this subclause in a prosecution for an offence and directs the reader to section 13.4 of
the Criminal Code. The same applies in proceedings for a civil penalty. This mirrors
the approach in clause 20 in relation to the individual publication defence for
publishing a tobacco advertisement.
The reversal of the legal burden is appropriate as while the act of having published the
e-cigarette advertisement will be evident the conduct involved in doing so will be
particular to the knowledge of the defendant. The evidence will be readily available to
the defendant if they were acting as an individual and they did not receive a benefit
for publishing the advertisement, and of minimal or no cost for them to produce.
Division 2--Meaning of e-cigarette advertisement
Clause 43--Meaning of e-cigarette advertisement
Subclause 43(1) provides for a basic definition of e-cigarette advertisement. It
provides that e-cigarette advertisement means any form of communication,
recommendation or action that promotes or is likely to promote whether directly or
indirectly, vaping, an e-cigarette product or the use of such a product.
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A communication, recommendation or action can be both an e-cigarette advertisement
and a tobacco advertisement.
Subclause 43(2) provides that an e-cigarette advertisement may comprise any means,
or combination of means, of communication, recommendation or action (whether
visual, aural or otherwise).
Subclause 43(3) provides that in determining whether material is an e-cigarette
advertisement, whether or not the material promotes matters in addition to the matters
mentioned in subclause (1) should be disregarded.
Subclause 43(4) provides for a rebuttable presumption, such that material that is or
contains any of the things set out in paragraphs 43(4)(a) to (c) is presumed to promote
vaping, or an e-cigarette product or the use of such a product unless the contrary is
provided.
A note provides that a defendant bears a legal burden in relation to proving the
contrary and refers the reader to section 13.4 of the Criminal Code. A reverse legal
burden is appropriate because it is accepted that that material containing the items in
paragraphs 43(4)(a) to (c) is inherently promotional.
Subclause 43(5) provides that promoting the whole or part of the name of a person
constitutes an e-cigarette advertisement if the person is a manufacturer, importer,
distributor or retailer of e-cigarette products; and the person's name appears on an
e-cigarette product, or on the wrapping of an e-cigarette product.
A note provides that the use of the name of a person mentioned in this subclause does
not constitute an e-cigarette advertisement in certain circumstances and refers the
reader to Division 3.
Subclause 43(6) provides that the regulations may prescribe material to be an
e-cigarette advertisement for the purpose of this Act. The regulation-making power is
appropriately constrained by the requirement in subclause 43(7) that before the
Governor-General makes such regulations the Minister must be satisfied that it is
appropriate to do so and that the proposed regulations would not be inconsistent with
Division 3. This reflects the intent that the regulations will only provide clarification
as to what is an e-cigarette advertisement and they will not extend the scope of the
regime.
Division 3--E-cigarette advertisements--exceptions
The exceptions to the prohibition on the publication of e-cigarette advertisements
mirror those for tobacco advertisements.
They are set out in clauses 44 to 55.
E-cigarettes are sometimes prescribed by a health practitioner to a patient. The
making of material about the use of e-cigarettes for smoking cessation available by a
health practitioner to a patient in a clinical setting likely falls outside the scope of the
prohibition because there is no publication of the material. This is consistent with the
exception for exempt advertisements under the Therapeutic Goods Act in clause 54.
Clause 44--Exception--labelling and wrapping
Clause 44 provides an exception for labelling and wrapping.
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Subclause 44(1) provides that marks that appear on an e-cigarette product, or on the
wrapping of an e-cigarette product, do not, of themselves, constitute an e-cigarette
advertisement.
Subclause 44(2) makes clear that despite subsection (1), a communication,
recommendation or action in relation to the e-cigarette product, or the wrapping of the
e-cigarette product, may constitute an e-cigarette advertisement.
Clause 45--Exception--standard business documents
Clause 45 provides an exception for standard business documents.
Subclause 45(1) provides that marks that appear on a document prepared in the
ordinary course of business of a manufacturer, importer, distributor or retailer of e-
cigarette products do not, of themselves, constitute an e-cigarette advertisement. A
note provides that examples of such documents include orders, invoices, statements
and documents relating to procurement and employment.
Subclause 45(2) provides that, despite subclause (1), a communication,
recommendation or action in relation to the document may constitute an e-cigarette
advertisement.
Clause 46--Exception--business signage
Clause 46 provides an exception for business signage. This clause provides that
business signage satisfying subclause 46(2) that appears in, on or near business
premises occupied by the manufacturer, importer, distributor or retailer of e-cigarette
products does not, of itself, constitute an e-cigarette advertisement.
Subclause 46(3) provides that, despite subclause (1), a communication,
recommendation or action in relation to business signage may constitute an e-cigarette
advertisement.
Clause 47--Exception--notice of availability of e-cigarette products
Clause 47 provides an exception for notice of availability of e-cigarette products. This
clause provides that a statement that e-cigarette products, or that such products of a
particular kind, are available from a manufacturer, importer, distributor or retailer
does not, of itself, constitute an e-cigarette advertisement if the statement does not use
the name of any particular e-cigarette product or range of products; or contain
anything that would enable a particular e-cigarette product, or a range of such
products, to be identified.
Clause 48--Exception--consumer matters
Clause 48 provides an exception for consumer matters. This clause provides that none
of the communications specified in paragraphs (a) to (e), of themselves, constitute an
e-cigarette advertisement.
Clause 49--Exception--communications about government or political matters
Clause 49 provides an exception for communication on government or political
matters. This exception is cast in the same terms as that for tobacco advertisements
and is included for the same reasons as included above.
Subclause 49(1) provides that a communication does not constitute an e-cigarette
advertisement to the extent that it is a communication about government or political
matters. The matters may relate to any level of government in Australia.
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Subclause 49(2) provides that the use in such a communication of the whole name of
a manufacturer, importer, distributor or retailer of e-cigarette products does not, of
itself, make the communication constitute an e-cigarette advertisement.
Clause 50--Exception--artistic works and public interest expression
Clause 50 provides for the circumstances in which artistic works and public interest
expression will not be considered to be an e-cigarette advertisement. It provides that
neither the performance, exhibition or distribution, in good faith, of an artistic work or
a communication to the extent it is made for any genuine academic, educational or
scientific purpose or any other genuine purpose in the public interest is an e-cigarette
advertisement.
Clause 51--Exception--journalism
Clause 51 provides an exception as to what constitutes an e-cigarette advertisement
where the publication of material can be more appropriately characterised as
journalism. It provides that the publication of material that is or relates to a news
report, or a current affairs report, is not an e-cigarette advertisement if the conditions
set out in paragraphs (a) to (c) are satisfied.
Clause 52--Exception--disclosures and acknowledgements by authors
Clause 52 provides for the statements that might be made by an author of a work
published or intended for publication in a periodical which will not be considered to
be an e-cigarette advertisement. Paragraphs 52(a) and (b) relate to a statement made in
the work to disclose the author's conflict of interest in relation to the work and a
statement made in the work that does no more than acknowledge a contribution made
to the author in connection with the preparation of the work. Neither of these
statements will constitute an e-cigarette advertisement.
A note alerts the reader that Part 2.5 prohibits e-cigarette sponsorships.
Clause 53--Exception--exempt advertisements under the Therapeutic Goods
Act
Clause 53 provides an exception for exempt advertisements under the Therapeutic
Goods Act. This clause applies to any communication that is an advertisement relating
to an e-cigarette product that is a therapeutic good within the meaning of the
Therapeutic Goods Act where Part 5-1 of that Act does not apply to the advertisement
because of section 42AA of that Act.
A note provides that section 42AA of the Therapeutic Goods Act permits
advertisements directed exclusively to certain health professionals, and advice or
information given directly to a patient in a clinical setting.
This clause is intended to ensure that communications which are permitted under
section 42AA of the Therapeutic Goods Act continue to be permitted and are not
prohibited by this Act.
Clause 54--Exception--approved use of restricted representations under the
Therapeutic Goods Act
Subclause 54(1) provides that the exception in subclause 54(2) applies in relation to
an e-cigarette product if the product is a therapeutic good and there is in force, under
section 42DF of the Therapeutic Goods Act, an approval by the Secretary to use a
restricted representation in relation to that product.
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The exception in subclause 54(2) provides that an e-cigarette advertisement does not
include an advertisement for the e-cigarette product to the extent that the
advertisement includes the use of the restricted representation and use of the
representation complies with any conditions imposed on the approval.
Subclause 54(3) provides that the expressions used in clause 54 that are defined for
the purposes of the Therapeutic Goods Act have the same meaning in this clause as
they have in that Act.
Clause 55--Exception--permitted use of restricted or prohibited representations
under the Therapeutic Goods Act
Clause 55 provides an exception for permitted representations under the Therapeutic
Goods Act.
Subclause 55(1) provides that the clause applies in relation to an e-cigarette product if
the product is a therapeutic good and the Secretary has granted permission, under
section 42DK of the Therapeutic Goods Act, to use one or more of those listed in
paragraphs 55(1)(b)(i)-(iii) in specified advertisements about the product.
Subclause 55(2) provides for an exception where an advertisement for the e-cigarette
product does not constitute an e-cigarette advertisement to the extent that it meets the
criteria set out in paragraphs 55(2)(a)-(c).
Subclause 55(3) provides that expressions used in this clause that are defined for the
purposes of the Therapeutic Goods Act have the same meaning in this clause as they
have in that Act.
This clause is aimed at excluding, from the prohibition under this Act, advertising to
health professionals that is permitted under section 42DK of the Therapeutic Goods
Act. There is a permission in place - the Therapeutic Goods (Restricted and
Prohibited Representations- Nicotine) Permission (No.2) 2021.
Division 4--Meaning of publish an e-cigarette advertisement
Clause 56--Meaning of publish an e-cigarette advertisement
The basic definition in subclause 56(1) provides that a person publishes an e-cigarette
advertisement if the person uses any means of communication to make material
comprising the advertisement, or material containing the advertisement, available to,
or accessible by, the public or a section of the public.
Subclause 56(2) provides that, without limiting subclause (1), material is taken to be
made available to, or accessible by, the public or a section of the public if the material
is included in something sold, or offered for sale or supply, to the public or a section
of the public.
Subclause 56(3) relates to targeted online advertising. It provides that material is
taken to be made available to, or accessible by, the public or a section of the public if
the material is made available to, or accessible by, a person using the internet; and the
material is made available to that person because of the use of an algorithm; the
person's online activity; or any other characteristic of that person as an internet end
user.
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Subclause 56(4) relates to private events or functions. It provides that, without
limiting subclause 56(1), material is taken to be made available to, or accessible by,
the public or a section of the public if the material is made available to, or accessible
by, a person attending a private event or function to which access is restricted; and the
purpose of the event or function is or includes the promotion of vaping; or an
e-cigarette product or the use of such a product; or a manufacturer, importer,
distributor or retailer of such a product.
Subclause 56(5) makes clear that in determining whether material is made available
to, or accessible by, the public or a section of the public at a private event or function,
it will be disregarded whether or not payment or other consideration is received from
any person in relation to the event or function.
Division 5-- E-cigarette advertisements--permitted publications
Clause 57--Permitted publication--physical premises point of sale
Subclause 57(1) permits e-cigarette advertisements, at physical premises where
regulated tobacco items are offered for retail sale, which are in compliance with State
and Territory law. The State or Territory law will need to contain provisions dealing
with the display of advertisements for regulated tobacco items at or on places where
such items are offered for sale to the public and the display of the advertisement under
those provisions is not an offence. The e-cigarette advertisement must not be visible
from outside of a physical premises.
Subclause 57(2) provides that a place that has fixed boundaries, regardless of whether
these boundaries have walls where goods are offered for retail sale, vending
machines, kiosks, market stalls and motor vehicles are taken to be "physical
premises" for the purposes of subclause 57(1). It follows that point of sale advertising
at each of these places is permitted under the Bill, provided it complies with any
applicable State or Territory legislation.
There is no intention to override State and Territory point of sale bans.
Subclause 57(3) relates to e-cigarette advertisements complying with Commonwealth
regulations. It permits a person to publish and display an e-cigarette advertisement
that complies with any Commonwealth regulation that is made and where there is no
applicable State or Territory law. Subclause 57(4) sets out the permissible content of
any prescribed Commonwealth regulations.
Clause 58--Permitted publication--online point of sale
Subclause 58(1) provides that a person may publish an e-cigarette advertisement in a
State or Territory if the person makes the advertisement available on, or accessible
using, the internet to the public (or a section of the public) and the advertisement is
available to or accessible by the public, or a section of the public, in the State or
Territory; the advertisement provides a facility for a person accessing the
advertisement to purchase an e-cigarette product; and the publication of the e-cigarette
advertisement is covered by subclause 58(2).
Subclause 58(2) provides that the publication of an e-cigarette advertisement is
covered by this subclause if a law of the State or Territory regulates the advertising of
e-cigarette products on the internet; that law contains provisions expressly dealing
with the publication of advertisements for e-cigarette products on the internet that
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provide a facility for a person accessing the advertisement to purchase an e-cigarette
product; and publication of the advertisement complies with those provisions.
Subclause 58(3) provides that a person may publish an e-cigarette advertisement that
complies with any prescribed Commonwealth regulations where there are no
applicable State or territory laws. Subclause 58(4) provides what the content of any
prescribed regulations may, without limitation, include.
Clause 59--Permitted publication--trade communications
Clause 59 provides that trade communications are a permitted publication.
Subclause 59(1) permits the publication of an e-cigarette advertisement if the person
makes the advertisement available to, or accessible by, a group of people all of whom
are involved in the manufacturer, importation, distribution or sale of e-cigarette
products.
Subclause 59(2) provides that subclause 59(1) applies only in the circumstances set
out in paragraphs (a) to (c).
A note explains that factual information about e-cigarette products includes brand or
variant name, price, ingredients, availability and package sizing.
Clause 60--Permitted publication--telecommunications and online service
providers
Clause 60 provides a permitted publication exception for telecommunications and
online service providers. This clause provides that a person who is a carrier, carriage
service provider, internet service provider or Australian hosting service provider may
publish an e-cigarette advertisement if the person is solely acting in the person's
capacity as a carrier, carriage service provider, internet service provider or Australian
hosting service provider.
Clause 61--Permitted publication--periodicals printed outside Australia
Clause 61 provides for the permitted publication circumstances as they relate to
periodicals printed outside Australia. This clause provides that a person may publish
an e-cigarette advertisement if the advertisement is contained in a hard copy
periodical printed outside Australia, the periodical is not principally intended for
distribution or use in Australia and the conduct constituting publication of the
advertisement consists of no more than selling or supplying, or offering to sell or
supply, the periodical.
Clause 62--Permitted publication--compliance activities
Clause 62 provides for the compliance activities that will be permitted publication.
This clause provides that a person may publish an e-cigarette advertisement if the
publication is made to comply with a request by, or a requirement of, an authorised
officer in relation to administering or enforcing the Act; or authorised or required by
any other law of the Commonwealth or any law of a State or Territory.
Clause 63--Permitted publication--advertisements during aircraft flight
Clause 63 provides that advertisements during international flights will be permitted
publications.
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Subclause 63(1) provides that a person may publish an e-cigarette advertisement if the
person is operating the flight of an aircraft and the person publishes the advertisement
in the aircraft during the flight.
Subclause 63(2) provides that subclause 63(1) does not apply if the flight begins at a
place in Australia and is intended to end at another place in Australia.
Subclause 63(3) provides that, for the purposes of subclause 63(1), each sector of a
flight of an aircraft is taken to be a separate flight. Accordingly, a flight that is
intended for an international destination but travels domestically before doing so is
not covered by this exception for the domestic sector.
Clause 64--Interaction of Division with Therapeutic Goods Act
Clause 64 is included to ensure that Division 5 is not construed as an authorisation or
requirement.
It provides that nothing in this Division constitutes, for the purpose of Part 5-1 of the
Therapeutic Goods Act, an authorisation or requirement by a government or
government authority to make a reference to an e-cigarette product that is therapeutic
goods within the meaning of that Act.
Part 2.5--Prohibition of e-cigarette sponsorships
Division 1--Offences and civil penalties
Clause 65--Prohibition on entering into e-cigarette sponsorships
Subclause 65(1) prohibits a person entering into an e-cigarette sponsorship and
provides for where a person will contravene this provision, by providing for the
conduct that will constitute entering into an e-cigarette sponsorship.
Subclause 65(2) captures conduct that is intended to be an e-cigarette sponsorship but
is not an e-cigarette sponsorship. It provides that a person contravenes subclause 65(2)
if they engaged in the conduct set out paragraphs 65(2)(a)(i)-(iii) and the conduct does
not constitute an e-cigarette sponsorship but the person intends the conduct to be an
e-cigarette sponsorship or the person is reckless as to whether the contribution is an
e-cigarette sponsorship and any of paragraph 65(2)(c)(i)-(iv) apply.
A note provides that the physical elements of the offences against subclauses (4) and
(7) are set out in subclauses (1) and (2) and refers the reader to clause 165.
Subclause 65(3) provides that for the purposes of subclauses (1) and (2) it does not
matter if the arrangement, agreement, understanding, promise or undertaking is in
writing, express or implied, legally binding or publicly acknowledged.
Subclause 65(4) provides for a fault-based offence.
Subclause 65(5) provides that for the purposes of subclause 65(4) the fault element is
recklessness for paragraph 65(1)(b) and strict liability applies to paragraph 65(1)(c)
and 65(2)(c).
The fault element of recklessness for paragraph 65(1)(b) is appropriate as it ensures
that conduct will constitute an offence if a person does not exercise appropriate care
to not be advertising e-cigarettes.
Subclause 65(6) provides that the geographical application of the fault-based offence
is extended geographical jurisdiction--category B. The offence extends to conduct by
an Australian citizen or body corporate outside Australia.
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Subclause 65(7) provides that a person commits an offence of strict liability if the
person contravenes subclause 65(1). The maximum penalty is 60 penalty units for an
individual and 600 penalty units for a body corporate.
Subclause 65(8) provides that a person is liable to a civil penalty if the person
contravenes subclause 65(1). The maximum penalty for an individual is 2,000 penalty
units and 20,000 for a body corporate.
Division 2--Meaning of e-cigarette sponsorship
Clause 66--Meaning of e-cigarette sponsorship
Subclause 66(1) provides the basic definition of e-cigarette sponsorship. It provides
that an 'e-cigarette sponsorship' means any form of contribution (whether financial or
otherwise) to an event, activity or individual that promotes or is likely to promote
vaping, an e-cigarette product or the use of such a product, whether directly or
indirectly.
A note highlights that in some circumstances, an e-cigarette sponsorship may also
constitute an e-cigarette advertisement.
Subclause 66(2) provides that the regulations may prescribe a kind of contribution to
be an e-cigarette sponsorship for the purposes of this Act.
Division 3--E-cigarette sponsorships--exceptions
Clause 67--Exception--political donations and electoral expenditure
Clause 67 provides for an exception for political donations and electoral expenditure.
Subclause 67(1) provides that a gift or a payment or reimbursement of expenditure
incurred during the course of an election made to a person or entity covered by
subclause 67(2) does not constitute an e-cigarette sponsorship.
Subclause 67(2) covers the persons and entities set out in paragraphs (a) to (e).
Paragraph (d) is broadly framed to identify an entity that is associated with a person or
entity mentioned in paragraphs (a) to (c). For example, an entity that is the fundraising
arm of a political party as defined in paragraph (c) would fall within the exception in
paragraph (d). By contrast, it is intended that an endowment fund established by a
Member of Parliament for charitable purposes will not be captured by the exception as
it is established in a private capacity and is not directly associated with the Member in
their capacity as a Member so is not intended to be covered by the exception.
Subclause 67(3) clarifies that terms used in subclause 67(1) that are defined in the law
dealing with electoral matters (within the ordinary meaning of that expression) of the
jurisdiction of the person or entity covered by subclause 67(2) to whom the
contribution is made have the same meaning in subclause 67(1) as they have in that
law. An example provides that, if a gift is made to a member of the Parliament of New
South Wales, and the term 'gift' has a defined meaning in the electoral law of that
State, then 'gift' has the same meaning for the purposes of subclause 67(1). It is
intended that this clause will operate concurrently with applicable State and Territory
electoral laws.
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Clause 68--Exception--statements by authors
Clause 68 provides that a statement made by an author of a work that is published, or
intended for publication, in a periodical to disclose the author's conflict of interest in
relation to the work does not constitute an e-cigarette sponsorship.
Part 2.6--Other matters
Clause 69--No action for failing to publish prohibited advertisement
Clause 69 provides that no action of any kind lies in any court against a person for
refusing or failing to publish a tobacco advertisement or an e-cigarette advertisement
if the publication is prohibited by this Act.
Chapter 3--Tobacco product requirements
This chapter deals with tobacco product requirements for regulated tobacco items.
The provisions reflect the plain packaging requirements (contained in the Tobacco
Plain Packaging Act 2011 and associated Regulations) with additional measures
included to enhance the regime.
It also reflects in part the contents of the Competition and Consumer (Tobacco)
Information Standard 2011 made under section 134 of Schedule 2 to the Competition
and Consumer Act 2010. The Tobacco Information Standard prescribes requirements
for health warnings to be displayed on tobacco product packaging and aims to
increase consumer knowledge of the health effects relating to the use of tobacco
products; ensure the continuing effectiveness of health warnings on retail packaging
of tobacco products and, by ensuring the continuing effectiveness of health warnings
on tobacco packaging, encourage the cessation of the use of tobacco products and to
discourage uptake or relapse.
Some of the provisions relating to retail packaging requirements (including the
contents of the Tobacco Information Standard) will be included in the regulations.
Due to its nature (including the level of detail), this material is more appropriately
contained in an instrument than in an Act of Parliament. There is sufficient guidance
on the face of the Bill to appropriately limit the matters that will be included in
delegated legislation. The provisions in the Bill specify the subject content and this
will restrict what is in turn included in the regulations.
As a public health measure directed to discouraging the uptake and encouraging the
cessation of smoking, the product and packaging requirements need to be adaptable.
The substantive ability to prescribe such requirements is included in the Bill while the
requirements themselves are appropriately contained in Regulations, which are
subject to disallowance. This supports an approach that is adaptive to evolving public
health issues, contemporary clinical evidence and changes in technology and the
market more generally. The specific health promotion inserts and graphic health
warnings are necessarily included in regulations as their effectiveness as a deterrent to
smoking is in part dependent on the images and warnings being able to be rotated and
refreshed to avoid consumer desensitisation and ensure accuracy.
Part 3.1--Introduction
Clause 70--Simplified outline of this Chapter
Clause 70 sets out a simplified outline of Chapter 3.
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Part 3.2--Key concepts--tobacco product requirements
Clause 71--Meaning of retail packaging of a tobacco product
The meaning of retail packaging of a tobacco product is set out in paragraphs 71(a) to
(g).
The packaging that will be regulated by the Bill includes any container that a tobacco
product is packed in for retail sale. This includes the package immediately around the
tobacco product, any carton that contains one or more packages of tobacco products
for retail sale, any wrapper that covers the packaging of a tobacco product or a
tobacco product itself, and anything placed in the packaging apart from the tobacco
product and anything attached to or forming part of the packaging. Where there is
more than one form of packaging used for retail sale, for example where a carton or
other container holds more than one packet of tobacco products, each layer of
packaging including the initial packet and the carton will have to comply with plain
packaging requirements.
The focus here is on the packaging being "retail" packaging that is being regulated
with the clear intent being that it is not packaging for such things like transport. The
Bill will not apply to packaging of tobacco products that is used solely for the purpose
of shipping or wholesale distribution, for example, large boxes, crates or packing
containers.
Note 1 alerts the reader that 'container' is defined in clause 8. Note 2 provides that for
requirements applying to the lining of a cigarette pack, reference should be made to
clause 74 (about the physical features of the retail packaging of tobacco products) and
clause 75 (about the colour and finish of the retail packaging of tobacco products).
Clause 72--Meaning of packages a tobacco product for retail sale
Clause 72 provides the meaning of 'packages' in the sense of when a person is
considered to have packaged a tobacco product for retail sale.
Paragraphs 72(a) to (g) set out the circumstances in which a person 'packages' a
product for retail sale.
Note 1 provides that reference should be made to clause 8 for the meaning of
'container.'
Note 2 provides that other grammatical forms of the word packages (such as
packaged) have a corresponding meaning and refers the reader to section 18A of the
Acts Interpretation Act 1901.
Clause 73--Meaning of prohibited term
The Bill provides that no prohibited terms may be included in a brand or variant name
(clause 85). Clause 73 will provide for the meaning of prohibited term.
A table is included in subclause 73(1) of the Bill which includes in column one a list
of prohibited terms in relation to a brand name or variant name of a tobacco product
and in column 2 examples of such prohibited terms.
Brand and variant names are used for promotional purposes, and particularly in the
context of plain packaging, are utilised as a means of product differentiation.
Misleading brand and variant names can falsely imply reduced harm.
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Provisions which operate by reference to the prohibited terms in items 1 to 7 give
effect to Articles 11(1)(a) and/or 13(4)(a) of the WHO FCTC. This is because the use
of such terms promotes a tobacco product by means that are:
• false, misleading or deceptive, and/or
• likely to create an erroneous impression about its characteristics, health
effects, hazards or emissions.
The use of certain terms may also constitute a form of "tobacco advertising and
promotion" for the purpose of Article 13(2) of the WHO FCTC.
Item 1 prescribes as a 'prohibited term' a term that implies no harm or reduced harm
and gives the example of "low tar, light, lite, mild, ultralight and ultralite". This aligns
with Articles 11(1)(a) and 13(4)(a) of the WHO FCTC, which specifically refer to
examples of terms that directly or indirectly create the false impression that a
particular tobacco product is less harmful than other tobacco products.
Item 2 prescribes "a term that refers to, or implies, a positive quality" and includes the
examples of "cool, smooth and ultra." The use of these terms is likely to create an
erroneous impression as to a characteristic of the relevant product.
Colours are prohibited by item 3. Colour descriptors mislead consumers in relation to
perceptions of harm, often evoking previous packaging imagery.
Item 4 prohibits a term that refers to a filter.
Item 5 prohibits "[a] nonalphabetical character (other than "&"), a numeral (in any
form) or an ideograph". The inclusion of "ideograph" means that emojis are
prohibited terms.
Item 6 provides that "a term that refers to, or implies, positive health effects" is a
prohibited term.
Item 7 prescribes a term that suggests the inclusion of a prohibited ingredient. This is
a necessary and practical provision to support the exclusion of prohibited ingredients.
The examples provided are "caffeine", "menthol" and "vitamin." In circumstances
where the inclusion of these ingredients is prohibited, a reference to these terms is
likely to create an erroneous impression as to a characteristic of the relevant product.
Subclause 73(2) provides for a regulation-making power to allow further prohibited
terms to be prescribed. Subclause 73(3) provides that before any such regulations are
made, the Minister must be satisfied that the word or mark, if used in a brand name or
variant name of a tobacco product, would (a) promote or be likely to promote
smoking or the product or the use of the product, (b) promote the product by means
that are false, misleading or deceptive or likely to create an erroneous impression
about the item's characteristics, health effects, risks or emissions, or (c) directly or
indirectly create an impression that the item is less harmful than other tobacco
products. These criteria reflect Articles 11(a), Article 13(4)(a) and Article 13(2) of the
WHO FCTC.
Subclauses 73(5) and 73(6) provide exceptions from the definition of a prohibited
term. The name of a person who is a manufacturer, importer, distributor or retailer of
regulated tobacco items is not a prohibited term, nor is a word or other mark that
forms part of a health warning, a health promotion insert or a mandatory marking.
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Part 3.3--Tobacco product requirements
Part 3.3 sets out tobacco product requirements. This part consolidates the plain
packaging requirements in the TPP Act and the Tobacco Information Standard and
includes some additional measures to strengthen and modernise the regime.
Division 1--Plain packaging requirements
Plain packaging for tobacco products is one of the means by which the Australian
Government gives effect to Australia's obligations under the WHO FCTC.
Specific requirements for the retail packaging of tobacco products will be prescribed
in regulations to reflect the requirements in place in Australia under the TPP Act.
Some of the requirements that were provided for in the TPP Act have been moved to
the regulations. Plain packaging requirements are based on research undertaken when
plain packaging was originally introduced to determine the impact on consumers and
potential consumers of innovative packaging shape, size and opening. Plain packaging
has been associated with a significant decrease in smoking rates. Evidence has shown
that further measures are needed to support existing requirements.
Additional measures will provide for further standardisation of tobacco products and
packs, regulating product design features that create novelty value and providing for
prohibited terms for brand and variant names.
Clause 74--Plain packaging--physical features
Clause 74 provides that the physical features of the retail packaging of tobacco
products must comply with the requirements prescribed by the regulations.
Clause 75--Plain packaging--colour and finish
Subclause 75(1) provides that the colour and finish of the retail packaging of tobacco
products must comply with the requirements prescribed by the regulations. The
intention is to use colour to decrease the appeal and attractiveness of tobacco
packaging, decrease the potential of the pack to mislead consumers about the harms of
tobacco use, and increase the impact of graphic health warnings. This requirement is
continued from the TPP Act.
Subclauses 75(2) and 75(3) provide that, where the regulations do not prescribe a
default colour for all outer surfaces and inner surfaces of the retail packaging of
tobacco products and both sides of any lining of a cigarette pack, those parts of the
retail packaging must be the colour known as Pantone 448C.
Subclause 75(4) provides that the health warnings, mandatory markings, brand name
or variant name of the tobacco product and any mark permitted on the retail
packaging of the tobacco product under paragraph 77(3)(d) are not required to be the
colour known as Pantone 448C.
Health promotion inserts are not required to be Pantone 448C either but are not listed
in subclause 75(4) because they are not themselves retail packaging.
Clause 76--Plain packaging--standardisation
Subclause 76(1) provides that the retail packaging of tobacco products must comply
with the requirements prescribed by the regulations as to (a) the number of units,
weight or volume of a tobacco product included in the retail packaging of that product
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and (b) the pricing of a tobacco product in retail packaging of that number of units,
mass or volume.
Subclause 76(2) provides that this clause does not apply to the retail packaging of
shisha tobacco products.
This clause contributes to Australia's implementation of Article 16(3) of the WHO
FCTC which provides that "[e]ach Party shall endeavour to prohibit the sale of
cigarettes individually or in small packets which increase the affordability of such
products to minors."
Clause 77--Plain packaging--prohibited terms and other marks
To ensure that no other design features detract from the impact of the plain packaging
requirements, no trade marks, prohibited terms or other marks are permitted to appear
on tobacco packaging (other than trade marks or other marks permitted by
subclause 77(3)).
Trade marks that will be allowed include, for example, the Quitline trade mark which
is required under the Trade Practices (Consumer Product Information Standards)
(Tobacco) Regulations 2004, and any brand, business or company name or variant
name trade marks that can appear whilst still complying with the detailed
requirements of the Bill and regulations.
Subclause 77(1) provides that no prohibited term may appear anywhere on the retail
packaging of tobacco products. The term 'prohibited term' is defined in clause 77.
A prohibited term is essentially a combination of 'marks' used in the brand or variant
name.
Subclause 77(2) prohibits a mark appearing on the retail packaging of tobacco
products other than as permitted by subclause 77(3). The term mark is relevantly
defined in clause 15.
Subclause 77(3) relevantly permits the display of health warnings, mandatory
markings, brand and variant names (provided they do not include a prohibited term)
and any other marks permitted by regulations to appear on the retail packaging of
tobacco products. A note refers the reader to clause 78 (in respect of mandatory
markings) and clause 79 (in respect of health warnings).
Subclause 77(4) provides that any brand name or variant name or other mark
permitted under paragraph 77(3)(d) that appears on retail packaging of tobacco
products must comply with the requirements (if any) prescribed by regulations made
for the purpose of this subclause.
Subclause 77(5) sets out restrictions on brand names, variant names or other marks
permitted under the Bill appearing on the retail packaging of tobacco products. It
provides in paragraphs 77(5)(a)-(e) that they must do such things as directly or
indirectly create an impression that the tobacco product is less harmful than other
tobacco products or constitute a tobacco advertisement.
Subclause 77(6) provides that the clause does not apply to a plastic or other wrapper
that covers the retail packaging of a tobacco product or a tobacco product that is for
retail sale.
A note provides that the requirements for wrappers are set out in clause 80.
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Clause 78--Plain packaging--health warnings
Clause 78 provides that the retail packaging of tobacco product must display the
images or combination of images, if any, prescribed by regulations under this clause.
These images (or combinations of images) will include messages, information and
graphics about the health consequences of smoking and contents of tobacco products.
Cessation support information - such as the Quitline phone number - will be required
to appear on the retail packaging of the tobacco product.
Subclause 78(2) provides that the Chief Medical Officer must have recommended any
images before regulations will be prescribed under this clause.
Subclause 78(3) provides that where new health warnings are prescribed in
regulations made after the initial regulations, the new regulations will not commence
for at least 6 months after they are made to allow an appropriate transition period.
Clause 79--Plain packaging--mandatory markings
This clause provides for the mandatory markings that must appear on retail packaging.
Subclause 79(1) provides that the regulations may prescribe mandatory markings that
must appear on the retail packaging of tobacco products.
Subclause 79(2) provides that mandatory marking must not, wholly or partly, obscure
any health warning on the retail packaging of tobacco products.
Subclause 79(3) makes it clear that the clause does not apply to a plastic or other
wrapper on the tobacco product. A note provides that the requirements for wrappers
are set out in clause 80.
Clause 80--Plain packaging--wrappers
Clause 80 provides that a plastic or other wrapper that forms part of the retail
packaging of tobacco products must comply with the requirements prescribed by the
regulations.
Clause 81--Plain packaging--prohibited tobacco product accessories
Clause 81 provides that the retail packaging of tobacco products must not include a
tobacco product accessory unless permitted by the regulations.
This clause is intended to restrict tobacco product accessories that are included in the
retail packaging, such as flavour cards. Clause 88 covers tobacco product innovations
that are part of the tobacco product itself, such as a crush ball or flavoured filter tip.
Clause 82--Plain packaging--inserts and onserts
Subclause 82(1) provides that the retail packaging of tobacco products (within the
meaning of paragraphs (a) to (d) of clause 71) must include health promotion inserts
and any other inserts or onserts prescribed by regulations made for the purposes of the
paragraph, but must not include any other inserts or onserts.
Subclause 82(2) provides that despite the prohibition in subclause 82(1) the retail
packaging of tobacco products may include any inserts or onserts where they are
permitted by any regulations made for the purpose of this subsection.
Subclauses 82(3) and 82(4) collectively provide that the Chief Medical Officer must
recommend any health promotion inserts before they can be prescribed and where any
new regulations are to be made prescribing health promotion inserts there must be at
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least a 6-month transitional period. This approach is consistent with that for graphic
health warnings in clause 78.
Clause 83--Retail packaging not to produce noise or smell
Clause 83 provides that no part of the retail packaging of tobacco products may make
a noise, or contain or produce a scent. This clause is intended to ensure that retail
packaging cannot be used as a marketing tool.
This clause prohibits self-generated noise or smell from a tobacco product's retail
packaging; it is not the case that the tobacco product must make no noise when
opened or have no smell at all.
Clause 84--Retail packaging must not change after retail sale
Clause 84 is intended to prevent sale of tobacco products in retail packaging that is
designed or intended to change after retail sale. To assist with interpretation of this
clause, a non-exhaustive list of technologies known to be able to change the
appearance of retail packaging after sale is provided in paragraphs (a) to (f).
Paragraph (g) provides for any other feature to be prescribed by regulations.
This clause does not affect changes that an individual may make after purchasing
products for personal use, for example by opening the packaging.
Division 2--Naming requirements
Clause 85 Prohibited terms--brand names and variant names
Clause 85 provides that a brand name or a variant name of a tobacco product must not
be or include a prohibited term.
Research indicates that brand and variant names influence perceptions of the smoking
experience, harm, appeal and attractiveness; they can also influence interest in trying
tobacco products, including among non-smokers and youth. As such, brand and
variant names undermine the dissuasive intent of plain packaging and enable tobacco
companies to effectively target different segments of smokers.
Since the introduction of plain packaging, variant names have become more
descriptive and evocative, there are now more variants per brand, and names are
evoking previous pack imagery. It is likely that the tobacco industry will continue to
adapt its products and promotion strategies in response to regulation.
Division 3--Appearance, physical features and content requirements
This Division outlines the appearance and content requirements for tobacco products.
Clause 86--Tobacco products--appearance and physical features
Clause 86 provides for the appearance requirements of tobacco products.
Subclause 86(1) provides that no prohibited term may appear anywhere on a tobacco
product. A note provides refers the reader to the definition of prohibited term in
clause 73.
Subclause 86(2) prevents the use of other marks unless they are permitted by the
regulations. A note refers the reader to the definition of mark in clause 15.
Subclauses 86(3) and 86(4) collectively provide that the appearance and physical
features of a tobacco product must comply with the requirements prescribed by the
regulations.
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Subclause 86(5) provides that before such regulations are made under subclauses
86(3) or 86(4) prescribing an image or text to appear on, or form part of a tobacco
product; the Commonwealth Chief Medical Officer must have recommended that the
image or text be prescribed for that purpose.
Subclause 86(6) provides that if regulations are made under subclauses 86(3) or 86(4)
prescribing an image or text; and those regulations are not the first such regulations
made under that subclause; the regulations must commence no earlier than 6 months
after the day the regulations are made.
A note provides that the requirements of subclauses 86(5) and 86(6) do not apply to
regulations prescribing things other than images or text.
Clause 87--Tobacco products--contents
Subclause 87(1) provides that a tobacco product must not contain an ingredient
prohibited by the regulations. A note refers the reader to clause 131 which requires a
report about the ingredients used in tobacco products to be given to the Secretary.
Subclause 87(2) provides that subclause 87(1) does not apply to a shisha tobacco
product insofar as that product contains molasses. Consequently, this clause does not
have the effect of prohibiting molasses in shisha tobacco products.
Subclause 87(3) provides that a tobacco product may contain an ingredient that is
permitted by the regulations. A note provides that subject to subclause 87(1) a tobacco
product may contain ingredients in addition to those expressly permitted by the
regulations. Effectively this means that the regulations will not prescribe the only
ingredients of a tobacco product.
The prohibition on flavour cards and flavoured filter tips is dealt with in clause 91.
Clause 88--Tobacco products--prohibited devices
Clause 88 provides that a tobacco product must not contain any device prohibited by
the regulations. This clause is intended to prohibit devices (such as flavour capsules or
crush balls) that form part of a processed tobacco product itself, and which have
novelty value and accordingly act as an incentive to consume the product.
Division 4--Tobacco product standards
The tobacco product standards in this Division reflect a consolidation of the Trade
Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes)
Regulations 2008, made under section 65C(2) of the Trade Practices Act 1974 and
continued in force as a safety standard made under section 104 of the Australian
Consumer Law by Schedule 7, item 4 of the Trade Practices Amendment (Australian
Consumer Law) Act (No.2) 2010, into this Bill with provision made for prescription of
performance and testing requirements in the Regulations. These provisions refer to
'tobacco products' while the instrument that they are based on prescribes safety
standards only for cigarettes.
Clause 89--Tobacco products--performance requirements
Clause 89 provides that a tobacco product must comply with any performance
requirements prescribed by the regulations.
Clause 90--Tobacco products--testing requirements
Clause 90 provides that a tobacco product must comply with any testing requirements
prescribed by the regulations.
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Division 5--Tobacco product accessories
Clause 91--Tobacco product accessories--prohibited functions
Clause 91 provides that a tobacco product accessory must not alter, or be capable of
altering, the flavour or smell of a tobacco product with which it is used. This clause is
intended to prohibit product design features that enhance novelty.
A note alerts the reader that examples of tobacco product accessories covered by this
section are (a) a flavoured filter tip designed or intended for use with roll your own
tobacco or (b) a flavour card designed or intended to infuse a tobacco product with a
flavour or smell.
Part 3.4--General offences and civil penalty provisions--tobacco product
requirements
Chapter 3 creates several offences relating to tobacco products and packaging that do
not comply with plain packaging requirements. These offences relate to the sale or
supply, purchase, packaging, or manufacturing of tobacco products for retail sale.
They will apply to commercial participants in the tobacco industry in Australia who
fail to comply with the requirements for tobacco products and packaging. They will
not apply to people who purchase tobacco products for their personal use, nor will
they apply to conduct (other than retail sale) undertaken for the purposes of exporting
tobacco products and packaging.
Most of the offence provisions in the Bill comprise a fault-based criminal offence,
which also has a corresponding strict liability offence (that is, where no fault elements
apply to the physical elements of the offence), as well as a civil penalty provision for
the same action. Part 3 of Chapter 5 also establishes that infringement notices may be
given where an authorised officer has reasonable grounds to believe a person has
contravened a strict liability offence. The civil penalty and infringement notice
schemes are designed to encourage compliance with the legislative requirements
without resorting to criminal prosecution. The Commonwealth will decide in each
particular case whether to prosecute a person for a fault-based offence or strict
liability offence, or whether to bring proceedings for a civil penalty order.
Criminal offences
Fault-based criminal offences, for which an accused individual or corporation may be
prosecuted, must be proved beyond reasonable doubt in court. For some elements of
fault-based criminal offences, strict liability is applied. This means no intention of
state of mind of the individual or body corporate needs to be proved.
Strict liability is applied to certain elements of the fault-based offences because a
requirement to prove fault (for example, the sale of a tobacco product in
non-compliant packaging) in relation to the matters listed above would undermine the
deterrent effect of the offence and would represent a significant burden on the
prosecution.
Each fault-based criminal offence also has a corresponding strict liability offence, in
which no fault elements are required for the physical elements of the offence. Like
fault-based criminal offences, strict liability criminal offences must also be proved
beyond reasonable doubt. A defendant will be able to raise the defence of honest and
reasonable mistake of fact.
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Strict liability is applied to the offences in Chapter 3--Tobacco product requirements,
Part 3.3, Part 3.4 and Part 3.5, as well as the offences relating to permanent bans on
certain tobacco products in Chapter 4 and the offences in relation to the reporting
requirements in Chapter 5. These offences are replicated as strict liability offences, to
ensure the availability of offences with lower penalties, that will encourage retailers
and other parties who frequently deal with tobacco products, and who provide tobacco
products to consumers, to avoid accepting and selling non-compliant tobacco
products. The intention is also to deter non-compliance in manufacturing.
The strict liability offences form the basis for the infringement notice scheme created
through Chapter 5, Part 3 of the Bill.
Consistent with Part 4.5 of the Guide to Framing Commonwealth Offences, the strict
liability offences are not punishable by imprisonment. Maximum penalties for the
offences are in line with those set out by Part 4.5 such that for an individual it is
60 penalty units. While the penalty is higher for bodies corporate (600 penalty units)
than that recommended by the Guide to Framing Commonwealth Offences it is an
appropriate penalty to enhance the compliance regime.
Civil penalty scheme
The civil penalty scheme allows the Secretary of the relevant Department (currently
the Department of Health and Aged Care) or a delegate to apply to the Federal Court
for an order that a person must pay a civil penalty for contravention of the plain
packaging requirements. The civil penalty scheme is designed to encourage
compliance with the legislative requirements without resorting to criminal
prosecution. Contraventions of a civil penalty provision must be proved on the
balance of probability in a court, and the court may order a monetary amount to be
paid as the penalty. The civil penalties are set at a level which is intended to support
the aim of deterring non-compliance with the scheme and reflect the serious impact of
non-compliance on public health.
Which provisions will apply?
The Commonwealth will decide in each particular case whether to prosecute a person
for a fault-based or strict liability offence, or whether to bring proceedings for a civil
penalty order. A person may only be prosecuted for a fault-based or strict liability
offence, not both, and once convicted of a criminal (fault-based or strict liability)
offence a person could not be pursued for civil penalties. However, proceedings for a
contravention of a civil penalty provision could be brought prior to a person being
prosecuted for a criminal offence. The approach is in line with Commonwealth policy
as it triggers the operation of the Regulatory Powers Act.
Penalties
The new regime will include increased penalties in an effort to ensure their level is a
sufficient deterrent to corporations. The increased penalties will deter breaches of the
tobacco control laws, particularly in circumstances where corporations might
otherwise perceive that there is a financial benefit of non-compliance. Penalties need
to be high enough to achieve deterrence and to ensure that public health is not
compromised by egregious conduct.
The penalties for individuals are consistent with those in the existing Tobacco Plain
Packaging Act 2011. Equivalent penalties are proposed for breaches of tobacco
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advertising offences. The Tobacco Advertising Prohibition Act 1993 does not have
civil penalties.
A new, separate maximum penalty for corporations is proposed, which is 10 times the
penalty for individuals.
The maximum penalties are:
• for individuals--2,000 penalty units for the fault-based offences and civil
penalty provisions, and 60 penalty units for the strict liability offences; and
• for bodies corporate--20,000 penalty units for the fault-based offences and
civil penalty provisions, and 600 penalty units for the strict liability offences.
The new maximum penalty for corporations is intentionally significant (to ensure a
penalty cannot be considered an acceptable cost of doing business) and represents a
deliberate departure from the body corporate multiplier rule in the Guide to Framing
Commonwealth Offences. The need for an effective deterrent justifies this approach.
These maximum penalties have been selected to incentivise compliance and achieve
consistency with the penalties for similar conduct in comparable legislation, including
the Biosecurity Act 2015 section 58 and the Privacy Act 1988 section 66.
New civil penalty provisions have also been introduced to facilitate compliance with
legislative requirements without the need to resort to criminal prosecution.
The changes to the penalty levels are also a result of the consolidation of the
provisions, particularly with the Tobacco Information Standard. The penalties are
notably less than they are for the Information Standard itself with higher penalties are
imposed across the board.
Onus of proof
Some sections in this Chapter place the onus of proof on the defendant for certain
elements of the offence. This is because it would be significantly more difficult for
the prosecution to prove these elements, than it would be for the defendant to disprove
them, since the relevant information is known particularly to the defendant.
The onus is reversed where the exception is dependent on particular knowledge or
intent of the defendant. It would, for example, be significantly more difficult for the
prosecution to prove the intention of an individual to purchase a tobacco product for
personal use, than for the defendant to show their history of tobacco use and
purchases, and their particular intentions in each instance. Similarly, a manufacturer
will have particular knowledge and proof of any steps undertaken to ensure retail
packaging complied with plain packaging requirements and would also have
documentation relevant to the intended market for the product in instances where the
product is intended for export.
The reversal of the onus of proof in these circumstances is considered to be consistent
with Part 4.6 of the Guide to Framing Commonwealth Offences.
In some cases there is a reversal in relation to the legal burden and in others the
evidential burden.
The provisions where the legal burden is placed on the defendant are appropriately
kept to a minimum in the Bill. The following provisions place the legal burden on the
defendant: clause 17, subclause 19(9), subclause 20(4), subclause 42(9) and
subclause 43(4).
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It is made clear on the face of the legislation that the legal burden rests with the
defendant in relation to the above. A reversal of the legal burden rather than the
evidential burden has been considered appropriate because these matters will be
particular to the knowledge of the defendant who will be able to readily prove the
contrary if it is available. The imposition of legal burdens on the defendant will likely
expedite the prosecution for the offence where it is reasonable to do so.
The following provisions place the evidential burden on the defendant: subclauses
19(3), 42(3), 93(2), 94(2), 95(4), 96(4), 99(4), 100(2), 103(3), 104(3), 107(2), 108(2),
109(4), 110(4), 113(4), 114(2), 117(3), 118(3), 120(2), 127(3) and 128(3).
In each of these cases, the exception is dependent on particular knowledge or intent of
the defendant. It would be significantly more difficult for the prosecution to prove the
intention of an individual to, for example, purchase a tobacco product for personal
use, than for the defendant to show their history of tobacco use and purchases, and
their particular intentions in each instance. Similarly, a manufacturer will have
particular knowledge and proof of any steps undertaken to ensure retail packaging
complied with plain packaging requirements and would also have documentation
relevant to the intended market for the product in instances where the product is
intended for export.
The reversal of the onus of proof in these circumstances is consistent with Part 4.6 of
the Guide to Framing Commonwealth Offences.
Jurisdiction
As the Bill does not deal with the jurisdiction for the offences in this Chapter,
section 68 of the Judiciary Act 1903 will apply to confer jurisdiction on state and
territory courts.
Division 1--Tobacco products not in retail packaging
This Division sets out the general offences for dealing with tobacco products not in
retail packaging. The clauses provide that it will be an offence to:
• clause 92--Engage in the retail sale of tobacco products without retail
packaging;
• clause 93--Sell or supply tobacco products to retailers without retail
packaging. There is an exception at subclause 93(2) for cigars sold or supplied
to retailer for individual resale and the person reasonably believes the retailer
intends to repackage each cigar for individual retail sale compliant with the
Bill. The "import" referred to in subclause 93(2) is an export from the
perspective of the person doing the selling or supplying and an import from
the perspective of the retailer.
Division 2--Non-compliant retail packaging of tobacco products
This Division sets out the general offences for non-compliant packaging of tobacco
products. The clauses provide that it will be an offence to:
• clause 94--Sell or supply tobacco products in non-compliant retail packaging;
• clause 95--Purchase tobacco products in non-compliant retail packaging;
• clause 96--Possess tobacco products in non-compliant retail packaging;
• clause 97--Package tobacco products in non-compliant retail packaging;
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• clause 98--Manufacture non-compliant retail packaging of tobacco products;
• clause 99--Possess non-compliant retail packaging of tobacco products; and
• clause 100--Manufacture tobacco products that are packaged in
non-compliant retail packaging.
There are exceptions that apply to the general offences which are specific to each
offence type. For example, clause 96 includes an exception for cigars possessed by a
retailer for individual resale, possession by an individual for personal use and
possession in the course of compliance and enforcement activities. A note alerts the
reader that there is another exception to subclause 96(1) in clause 120.
In relation to clause 98, the provision is directed to the conduct of a corporate entity
which manufactures retail packaging for a manufacturer. An individual acting in the
course of their employment for a manufacturer who packages a product is not
intended to be captured by this offence provision.
In relation to clause 99, possessing out-of-date retail packaging, or tobacco products
in retail packaging that is out-of-date, is not an offence. What enlivens the offence
provisions is contravention of a tobacco product requirement and, in the case of health
warnings, the contravention arises only if the person sells or supplies, or offers for
sale or supply, a tobacco product in retail packaging that does not display the current
health warning. This exception is intended to allow for the transfer of tobacco product
from non-compliant packaging to compliant packaging, with the non-compliant
packaging subsequently disposed of. For example, there is no exposure for importers
for possessing products displaying out-of-date health warnings as a result of a delay.
These products can be transferred to packaging displaying compliant health warnings
prior to any sale or supply, and the out-of-date packaging can be disposed of.
Division 3--Non-compliant regulated tobacco items
Clause 101 sets out the scope of the Division. It provides that the Division applies to a
contravention of a tobacco product requirement other than a requirement relating to
the retail packaging of tobacco products.
A note provides that Divisions 1 and 2 deal with contraventions relating to the retail
packaging of tobacco products.
This Division sets out the general offences for non-compliant regulated tobacco items
(these are contraventions of a tobacco product requirement other than a requirement
relating to the retail packaging of tobacco products). The clauses provide that it will
be an offence to:
• clause 102--Sell or supply non-compliant regulated tobacco items;
• clause 103--Purchase non-compliant regulated tobacco items;
• clause 104--Possess non-compliant regulated tobacco items; and
• clause 105--Manufacture non-compliant regulated tobacco items.
Exceptions apply in relation to specific provisions such that, for example, for
clause 103 there is an exception for personal use and also for purchase in the course of
compliance and enforcement activities.
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Part 3.5--Offences and civil penalty provisions relating to constitutional
corporations--tobacco product requirements
To ensure the broadest possible support by the corporations power, the offences in
this Part apply to conduct already dealt with in Part 3.4, but are restricted to dealings
with constitutional corporations. The offences will potentially be triggered in
circumstances where a company deals with a constitutional corporation and also
where an individual deals with a constitutional corporation.
The clauses in Divisions 1 to 3 replicate the offences relating to tobacco products not
in retail packaging, non-compliant packaging of tobacco products generally and
non-compliant regulated tobacco items in Part 3.4 with reference to dealings with
constitutional corporations. The clauses provide that it will be an offence:
• clause 106--for a retailer to sell a tobacco product without retail packaging to
a constitutional corporation;
• clause 107--to sell or supply tobacco products without retail packaging to a
retailer who is a constitutional corporation;
• clause 108-- to sell or supply tobacco products in non-compliant retail
packaging to a constitutional corporation;
• clause 109-- to purchase tobacco products in non-compliant retail packaging
from a constitutional corporation;
• clause 110--to possess tobacco products in non-compliant retail packaging
obtained from a constitutional corporation;
• clause 111--to package tobacco products in non-compliant retail packaging
under a contract with a constitutional corporation;
• clause 112--to manufacture non-compliant retail packaging of tobacco
products under a contract with a constitutional corporation;
• clause 113--to possess non-compliant retail packaging of tobacco products
obtained from a constitutional corporation;
• clause 114--to manufacture tobacco products that are packaged in
non-compliant retail packaging by a constitutional corporation;
• clause 116--to sell or supply non-compliant regulated tobacco items to a
constitutional corporation;
• clause 117--to purchase non-compliant regulated tobacco items from a
constitutional corporation;
• clause 118--to possess non-compliant regulated tobacco items obtained from
a constitutional corporation; and
• clause 119--to manufacture non-compliant regulated tobacco items under a
contract with a constitutional corporation.
In relation to individual offences there are exceptions tailored to the nature of the
offence such as exceptions for personal use or conduct in the course of compliance
activities.
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Part 3.6--Miscellaneous
Division 1--Export exception
Clause 120--Export exception for non-compliant retail packaging or regulated
tobacco items
This clause provides a broad exception to the offences in clauses 94 to 100,
102 to 105, 108 to 114 and 116 to 119 for conduct that is undertaken in the course of,
or for the purposes of, exporting the tobacco products. This exception applies only if a
contract, arrangement or understanding for the tobacco product to be exported exists.
A defendant bears an evidential burden in relation to the matters in subclause 120(2)
which provides that that the conduct rule in the provisions listed in subclause 120(1)
does not apply to a person if the relevant person engages in conduct that would
contravene the conduct rule in relation to a regulated tobacco item and subclause
120(3) is satisfied in relation to the item. The evidential burden rests with the
defendant because this information would be more readily available to them to
adduce. It would be impractical and overly burdensome to place this burden on the
prosecution.
To enable the effective operation of the offences, this exception does not apply to
retail sale of a tobacco product in Australia. Retail sales at an airport to departing
travellers will not fall within the exception, for example. Neither does the Bill allow a
retailer to sell non-compliant products to customers who assure the retailer that they
intend to take the products out of the country. The availability of the exception in such
cases would make enforcement of the legislation difficult and make it easier for the
prohibitions in the Bill to be circumvented. Also, an exception for retail sales to
individuals leaving the country temporarily would leave open the possibility of
significant amounts of non-compliant packaging and non-compliant products being
within Australia. As well as making monitoring and enforcement more difficult, this
may undermine the aim of restricting exposure of persons in Australia to promotion of
smoking in the form of design features on packages and products.
Division 2--Interaction with certain intellectual property laws
Clause 121--Effect on the Trade Marks Act of non-use of trade mark as a result
of this Act
The Bill prevents trade marks from being placed on tobacco products or their retail
packaging. However, clause 121 preserves a trade mark owner's ability to protect a
trade mark, and to register and maintain registration of a trade mark.
To this end, clause 121 provides for the way various provisions of the Trade Marks
Act 1995 and the Trade Marks Regulations 1995 will operate in relation to the
provisions of the Bill. For example, a tobacco manufacturer that applies for the
registration of a trade mark in respect of tobacco products is taken to intend to use the
trade mark in Australia, if it would use it on the products or retail packaging, but for
the operation of the Bill. Similarly, if someone applies for removal of trade mark from
the register, alleging that the trade mark has not been used, this allegation will be
rebutted by evidence that the registered owner would have used the trade mark, but
for the operation of the Bill.
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Clause 122--Effect on the Designs Act of failure to make products as a result of
this Act
Clause 122 prevents an order being made requiring a licence to be granted in relation
to a registered design, or revoking registration of a design under the Designs Act
2003, as a result of the provisions of the Bill preventing the use of a registered design.
Clause 123--Effect on the Patents Act of compliance with this Act
Subclause 123(1) provides that the Act does not have the effect that the use of an
invention that is or relates to a regulated tobacco item would be contrary to law for the
purposes of the provisions of the Patents Act set out in paragraphs (a) to (c).
Subclause 123(2) provides that a failure to exploit a patented invention merely as a
result of compliance with the requirements of this Act does not constitute an
unsatisfactory failure to exploit the patent for the purposes of paragraph 133(3)(d) of
the Patents Act.
Division 3--Additional tobacco product requirements
Clause 124--Regulations may prescribe additional requirements
Paragraphs 124(1)(a) to (d) set out the subject areas in which regulations may
prescribe additional requirements.
Subclause 124(2) provides that Part 3.3 does not limit subclause (1).
Chapter 4--Permanent bans on certain tobacco products
This chapter provides for the permanent ban on chewing tobacco and snuffs intended
for oral use, similar to that made under section 65C97 of the Trade Practices Act 1974
and continued in force as a permanent ban under Australian Consumer Law, section
114 by Schedule 7, item 3 of the Trade Practices Amendment (Australian Consumer
Law) Act (No.2) 2010.
The permanent ban is intended to replace the existing permanent ban under the
Competition and Consumer Act 2010. It is framed as a permanent ban on certain
tobacco products (being chewing tobacco and snuffs intended for oral use).
Legislative amendment would be required for any additional products to be
permanently banned under this Chapter.
Part 4.1--Introduction
Clause 125--Simplified outline of this Chapter
Clause 125 sets out a simplified outline of Chapter 4.
Clause 126--Tobacco products that are permanently banned
Clause 126 provides that chewing tobacco and snuffs intended for oral use are
permanently banned.
Part 4.2--Offences and civil penalty provisions
Clause 127--Dealing in permanently banned tobacco products
Subclause 127(1) provides that the prohibition on dealing in permanently banned
tobacco products is contravened if the person imports or manufactures or engages in
the sale or supply of, or the offer to sell or supply, a tobacco product that is
permanently banned under this Act.
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A note provides that the physical elements of offences against subclauses 127(4) and
127(7) are set out in this subclause and refers the reader to clause 165.
There is an exception for importation for personal use set out in subclause 127(2) and
an exception for sale or supply by way of export in subclause 127(3).
A note provides that a defendant bears an evidential burden in relation to the matters
in subclauses 127(2) and 127(3) and refers the reader to subsection 13.3(3) of the
Criminal Code. The evidential burden appropriately rests with the defendant because
the evidence pertaining to the importation for personal use or the sale or supply for
export will be particular to the knowledge of the defendant and more efficiently
adduced by them than it would be by the prosecution.
Subclause 127(4) provides for a fault-based offence. The maximum penalty is 2,000
penalty units for an individual and 20,000 penalty units for a body corporate.
Subclause 131(5) provides that, for the purpose of the fault-based offence in subclause
(4), strict liability applies in relation to paragraphs (1)(c) and (d).
The geographical application of the offence, as set out in subclause 127(6), is
extended geographical jurisdiction--category B. The offence extends to conduct by
an Australian citizen or body corporate outside Australia.
Subclause 127(7) provides for a strict liability offence with a maximum penalty of 60
penalty units for individuals and 600 penalty units for bodies corporate.
Subclause 127(8) provides that person is liable for a civil penalty for contravention of
subclause 127(1) with a maximum penalty of 2,000 penalty units for an individual and
20,000 penalty units for a body corporate.
Clause 128--Possessing permanently banned tobacco products
Clause 128 provides that a person contravenes the offence of possessing permanently
banned tobacco products if the person is in possession of the product and the product
is permanently banned.
There is an exception in subclause 128(2) that provides that possession for personal
use where the product has been imported in compliance with a law of the
Commonwealth will not be an offence. In addition, there is also an exception in
subclause 128(3) for the sale or supply by way of export from Australia.
Subclause 128(4) provides for a fault-based offence with a maximum penalty of 2,000
penalty units for an individual and 20,000 penalty units for a body corporate.
Subclause 128(5) provides that strict liability applies to paragraphs (1)(b) and (c) of
subclause 128(4).
Subclause 128(6) provides for a strict liability offence if the person contravenes
subclause 128(1) and imposes a maximum penalty of 60 penalty units for an
individual and 600 penalty units for a body corporate.
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Chapter 5--Reporting and information disclosure
This chapter deals with reporting and information disclosure requirements for
reporting entities. The reporting requirements give effect to Australia's obligations
under Articles 5(3), 10, 12(c), 12(f), 13(4)(d) and 20(2) of the WHO FCTC.
There would be a requirement for reporting entities to report on the ingredients used
in manufacturing tobacco products, the volume of tobacco products imported into,
sold or supplied in Australia, and marketing and promotional expenditure.
The purposes of the report relating to tobacco product ingredients will be to inform
government policy development and enhance public awareness of (and access to
information regarding) the adverse health consequences of tobacco use and the
benefits of cessation of tobacco use. The reporting requirement will ensure there is
information available regarding the quantities and purposes of the ingredients used in
the manufacture of tobacco products, including any new or emerging trends. The
publication and disclosure of these reports will also support consumers to understand
the adverse health and environmental consequences of tobacco use.
The purpose of the report relating to tobacco product volumes will be to inform
government policy development and enhance public awareness. The Australian
Government has limited access to data on sales volumes and pricing for specific
brands and products. This information is valuable for policy development,
implementation, and evaluation. The reporting requirement will ensure there is
information available that relates to the size of the market, including information
about how much of each kind of tobacco product is imported, the total amount sold or
supplied as well as information about such things as sales revenue.
The purpose of the report relating to marketing and promotional expenditure is to
enhance transparency in relation to tobacco industry political contributions, electoral
expenditure and influence activities. Such transparency will provide valuable data for
government policy development and evaluation of tobacco control measures. This
measure will support the general prohibitions on advertising and sponsorship.
Collected data will help identify emerging trends on new and novel tobacco
advertising, promotion and sponsorship activities, which undermine the existing
tobacco control framework.
The Minister must publish each report given by a reporting entity under this Chapter
unless the Minister is satisfied that it is not appropriate to do so. However, the
Minister must not publish trade secrets or information that has a commercial value
that would be, or could be, destroyed if the information were disclosed.
The Secretary will also have the ability to disclose to another person or body reported
information for the purpose of that person or body undertaking research, policy
development or data analysis to assist the Department in administering the Act or
achieving one or more object of the Act. This will further support the objective of the
reported information being utilised to inform policy development and implementation.
The Secretary must not disclose reported information to another person who is not
employed or engaged by the Commonwealth or by a Commonwealth entity unless the
other person has met the specified confidentiality requirements.
A failure to comply with the reporting obligation in this Chapter is treated as a
continuing contravention, consistent with the default position for time-based civil
penalties in section 93 of the Regulatory Powers Act. A continuing contravention
regime has been introduced to incentivise compliance with this Chapter, even if the
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relevant deadline for compliance has passed. The maximum penalty (for the
fault-based offence and civil penalty provision) is consistent with the penalties for
similar conduct in comparable legislation, such as the Corporations Act 2001
section 319 and schedule 3.
The Criminal Code includes offences relating to the provision of false or misleading
information to the Commonwealth. It is prohibited under section 137.1 (which relates
to providing false or misleading information) and section 137.2 (which relates to
knowingly producing documents that are false or misleading in a material particular).
These offences potentially apply if a reporting entity were to provide false or
misleading reports. The penalty for both offences is 12 months' imprisonment.
Part 5.1--Introduction
Clause 129--Simplified outline of this Chapter
Clause 129 sets out a simplified outline of Chapter 5.
Clause 130--Meaning of reporting entity
Subclause 130(1) sets out the persons who are a reporting entity. It includes a person
who is a manufacturer of tobacco products that are sold or supplied, or offered for sale
or supply, in Australia and a person who is an importer of tobacco products that are
sold or supplied, or offered for sale or supply, in Australia. The manufacturer or
importer does not need to be the person who in fact sells, supplies or offers for sale or
supply the tobacco product in Australia.
These provisions have extraterritorial application such that the offence provided for in
clause 148 applies overseas.
A note provides that the meaning of 'person' is affected by clauses 168, 169 and 170.
In addition, 'reporting entities' may be prescribed by the regulations in accordance
with subclauses 130(2) and 130(3). Before such regulations are made, the Minister
must be satisfied that the person proposed to be prescribed is involved in the sale or
supply (other than by way of retail sale) of tobacco products in Australia. The retail
exclusion is intended to make it clear that the power to prescribe further reporting
entities is aimed at distributors.
This requirement ensures that the regulations will not expand the category of those
prescribed as reporting entities but rather be used to capture those who are intended to
be reporting entities.
Part 5.2--Reports
Division 1--Required reports
Clause 131--Tobacco product ingredients
The requirement to report on tobacco product ingredients gives effect to Article 10 of
the WHO FCTC. Article 10 requires the adoption of measures "requiring
manufacturers and importers of tobacco products to disclose to governmental
authorities information about the contents and emissions of tobacco products."
The clause applies to a reporting entity (as defined in clause 130). It applies to both
manufacturers and importers. The expectation is that importers will need to include
terms in their supply contracts with manufacturers for the provision of the necessary
ingredient information to enable them to report.
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Subclause 131(1) provides that a reporting entity must give to the Secretary a report
that identifies the ingredients (other than processing aids) used by the entity in
manufacturing each kind of tobacco product sold or supplied, or offered for sale or
supply, in Australia during each financial year.
A note provides that the ingredients of a cigarette include the paper, and any filter tip,
used in manufacturing the cigarette and refers the reader to subclause 9(2).
Subclause 131(2) provides that the report must be given to the Secretary within
30 days after the end of the financial year.
A financial year, which is relevant to all the reports that are required to be submitted,
is defined in the Acts Interpretation Act 1901 and "means a period of 12 months
starting on 1 July."
Subclause 131(3) prescribes the contents of a report. It provides that the report must
identify the brand name and variant name (if any) of the product, the common,
chemical and trade name of each ingredient, the purpose for which the ingredient is
used and the amount of the ingredient used in the product.
Clause 132--Tobacco product volumes
The requirement to report on tobacco product volume information is intended to give
effect to Article 20(2) of the WHO FCTC. Article 20(2) requires States Parties to
establish programmes for surveillance of the magnitude, patterns, determinants and
consequences of tobacco consumption and exposure to tobacco smoke. The Partial
Guidelines for the Implementation of Articles 9 and10 provide that "consistent with
Article 20.2 ... information on tobacco companies and on their sales will help assess
the magnitude and patterns of tobacco consumption."
This clause applies to reporting entities, being manufacturers and importers of tobacco
products, although the contents requirements of the reports in relation to tobacco
product volumes differ dependent on whether the reporting entity is a manufacturer or
an importer.
Subclause 132(1) provides that a reporting entity must give the Secretary a report on
each kind of tobacco product sold or supplied, or offered for sale or supply, by the
entity in Australia during each financial year. Subclause 136(1) requires a report about
tobacco products sold by the entity in Australia. Accordingly, it does not require a
report from a manufacturer who sells the tobacco product to another party (whether
related or not) who is the importer of the tobacco product.
Subclause 132(2) provides that the report must be given to the Secretary within
30 days after the end of the financial year.
Subclause 132(3) sets out the contents requirements of the report in paragraphs (a) to
(g). Paragraphs (a) and (b) have requirements specific to importers being to report on
the total number of units imported by the reporting entity and the total mass, in
kilograms, imported by the reporting entity.
An importer is the person who causes the product to be brought into the country. It is
not the shipping company.
In some circumstances, supermarket distributors will be required to report the
information under paragraphs 132(2)(c) to (g). This will be the case if they are
prescribed as reporting entities under subclause 130(2).
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Clause 133--Marketing and promotional expenditure
The requirement to report in relation to marketing and promotional expenditure is
intended to give effect to Articles 5(3), 12 and 13(4)(d) of the WHO FCTC.
Subclauses 133(1) and 133(2) provide that reporting entities, both manufacturers and
importers, must give a report to the Secretary about marketing and promotional
expenditure activities conducted by the entity during a financial year within 30 days
after the end of the financial year.
The contents of the report are set out in subclause 133(3) and include corporate social
responsibility activities; developing and designing retail packaging for tobacco
products; contributions of a kind mentioned in subclause 40(1); lobbying; services or
funding provided to any industry group or organisation that seeks to influence the
development of public policy relating to tobacco control; philanthropy; rebates and
reward systems offered to distributors and retailers of tobacco products: and
arrangements entered into with social media influencers.
These activities have their plain dictionary meaning.
Subclause 133(4) provides that the report must include for each activity a description
of the activity; the expenditure on the activity during the financial year; and the kind
of tobacco product in relation to which the activity was undertaken.
Clause 134--Determinations by Secretary
Clause 134 provides for the Secretary to make a determination by notifiable
instrument that the obligation to provide one or more reports under this Part does not
apply to a specified reporting entity.
This clause would allow the Secretary, on an individual reporting entity basis to
relieve a reporting entity from an obligation to provide a particular report. This is
provided for given that there may be individual circumstances of reporting entities
that warrant such provision. It is intended to take account of the broad application of
the reporting obligations that may mean that an entity would otherwise be required to
report where this was not in practice appropriate.
The determination is characterised as a notifiable instrument because the power is one
to relieve individual reporting entities from a reporting obligation.
There is no merits review provided in relation to this determination or in relation to
the Secretary's direction under clause 138 that a reporting entity provide the reports
required from the entity under Chapter 5 in a consolidated report.
Similarly, the ability of the Secretary to request a reporting entity under clause 143 to
provide additional information in relation to a matter mentioned in a report given by
the entity under Chapter 5, is not subject to merits review.
The Administrative Review Council guidance material gives guidance as to which
decisions should be subject to administrative review. It highlights that decisions
which are preliminary or procedural in nature can appropriately be excluded from
merits review.
These decisions could be considered preliminary or procedural in that the decisions
relate to how the reporting requirements are to be practically met, for example,
whether reports should be consolidated, rather than imposing new or additional
obligations. In this sense these decisions facilitate how an entity participates in the
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process of compliance and the effect of the decision is not substantive. This is because
it does not affect the overall status of an entity as a reporting entity. Moreover, fair
process is supported by requirements for such directions to be given in writing or via
notifiable instrument.
Division 2--General matters relating to reports
Clause 135--Scope of Division
The Division applies in relation to reports required to be given under this Chapter.
Clause 136--How reports must be given
Subclause 136(1) provides that a report must be given in a form and manner (if any)
approved in an instrument under subclause 136(2). Subclause 136(2) provides that the
Secretary may, by notifiable instrument, approve a form or manner for the purposes of
subclause 136(1).
Clause 137--Contents of reports
Clause 137 sets out the signature and certification requirements for reports along with
the basic details that the entity must include in the report such as (where relevant),
their ABN, and the date the report was signed.
A note refers the reader to the definition of related body corporate in clause 8.
Clause 138--Consolidated reports
Subclause 138(1) makes provision for a reporting entity to provide a consolidated
report i.e., a single report that contains 2 or more reports required to be given under
this Chapter. Subclauses 138(2) and 138(3) collectively prescribe the relevant
timeframes the report must cover and the contents of the consolidated report.
Subclause 138(4) provides that the Secretary may, by notifiable instrument, direct a
reporting entity to provide reports in the form of a consolidated report.
Clause 139--Reporting by related entities
Clause 139 applies if two or more reporting entities are related bodies corporate.
Where this is the case, they may combine the reports required to be given into a group
report.
Subclause 139(3) sets out the things that the group report must include such as
describing how the entities are related bodies corporate. A note refers the reader to the
definition of related body corporate in clause 8.
Clause 140--Direction by Secretary
Clause 140 makes provision for the Secretary to direct related bodies corporate to
submit a group report in accordance with clause 139. The direction would be made by
notifiable instrument. A note refers the reader to the definition of related body
corporate in clause 8.
Clause 141--No duplication of information
Subclause 141(1) prohibits the duplication of information in a report. This is relevant
to related bodies corporate and is intended to ensure that the same information is not
received by the Secretary in different reports.
Subclause 141(2) provides that subclause (1) applies whether or not the reporting
entities submit a group report under clause 139.
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Clause 142--Extensions of time
Clause 142 makes provision for reporting entities to apply to the Secretary for an
extension of time to give a report. The application must be made before the end of the
period for giving the report.
The Secretary may make a decision to grant an extension of time if after considering
the application and any matters prescribed in the Regulations, they are satisfied that
the circumstances that have resulted in the need for an extension of time are
exceptional or outside the entity's reasonable control.
The Secretary will determine the period of the extension based on the nature of the
circumstances that have resulted in the need for further time and the strength of the
evidence included in the application. If the Secretary refuses to extend time, then the
period for giving the report is extended until 7 days after written notice of the
Secretary's decision is given to the reporting entity.
The decision of the Secretary to refuse to grant further time; grant a shorter period of
time than sought; or to impose a condition on the grant of further time may be
reviewed on application by the Administrative Appeals Tribunal.
Clause 143--Secretary may request additional information
Clause 143 makes provision that the Secretary may request additional information
about a matter contained in a report given by an entity.
The request must be in writing and specify the period in which the information must
be given.
The reporting entity will need to comply with the request in the specified time period
or any longer period that the Secretary allows.
Clause 144--Regulations may prescribe additional requirements
Clause 144 provides the regulations that may be prescribe details about the
information to be included in a report under Chapter 5 and additional kinds of
information that are to be included in a report under this Chapter.
Division 3--Publication and disclosure
Clause 145--Publication of reports and information
The powers to publish and disclose reported information are intended to give effect to
Articles 12(c) and 12(f) of the WHO FCTC. Specifically, the powers to publish or
disclose reports are intended to give effect to Article 12(c), which requires Parties to
implement effective legislative measures to promote, inter alia, "public access ... to a
wide range of information on the tobacco industry as relevant to the objective of [the]
Convention".
The powers to publish or disclose tobacco product ingredient information are intended
to give effect to Article 12(f) of the WHO FCTC which requires Parties to implement
effective legislative measures to promote "public awareness of and access to
information regarding the adverse health, economic, and environmental consequences
of tobacco production and consumption". The availability of such information to the
public at large, and to researchers, will assist in ensuring that the public has access to
information on the adverse health and environmental consequences of tobacco use.
Clause 145 sets provisions relating to the publication of the reported information
under Chapter 5.
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The Minister must publish, in such manner as the Minister considers appropriate, each
report given by a reporting entity under Division 1 (subclause 145(1)), however, this
is subject to subclauses 145(2) and 145(3). Subclause 145(2) provides that the
Minister may decide not to publish a report, or part of a report, if the Minister is
satisfied that it is not appropriate to do so having regard to the matters (if any)
prescribed by regulations.
The discretion not to publish reports will allow the Minister flexibility in the context
of a new scheme to determine which reports are appropriate for publication and which
are not. The volume of reports to be received will be sizeable and it will be important
for the Minister to have the ability not to publish if they do not consider it appropriate
to do so. There is a regulation-making power in subsection 145(2) which provides that
in making a decision not to publish the Minister must have regard to any regulations
prescribed.
It may be the case that the Minister will prescribe such considerations as whether
publication would be contrary to the objects of the Bill, or where the publication of
raw data would be subject to misinterpretation. Given that the reporting and
publication scheme will be new it will be necessary for the Minister to ensure
publication is best supporting the objects of the Bill and may be necessary for the
Minister to prescribe circumstances that guide the discretion not to publish all or part
of the reports.
There are, nonetheless, restrictions on the information that may be published. The
Minister must not publish reported information if the information is a trade secret of
the reporting entity (clause 145(3)(a)) or other information that has a commercial
value that may be destroyed if the information were publicly disclosed (clause
145(3)(b)). Subclause 145(4) provides that this restriction does not apply to reported
information that is already in the public domain, required to be disclosed under
another law of the Commonwealth, or under a law of a State or Territory or readily
discoverable.
Clause 146--Disclosure for research, policy development or data analysis
Subclause 146(1) provides that clause 146 applies to reported information being a
report, or part of a report, that the Minister decides not to publish under subclause
145(2) and information that is not published under subclause 145(3).
Subclause 146(2) facilitates the Secretary disclosing reported information of this kind
to another person or body for the purposes of them undertaking research, policy
development or data analysis to assist the Department with the administration of the
Bill or achieving one of the objects in paragraphs 3(1)(a) and (b) (about regulated
tobacco items) of the Bill. As stated above, this clause is intended to give effect to
Articles 12(c) and 12(f) of the WHO FCTC.
Subclause 146(3) provides that the Secretary must not disclose reported information
to a person or body that is not engaged by the Commonwealth or by a Commonwealth
entity unless the other person or body has undertaken not to use or further disclose the
reported information except in accordance with a written agreement. That written
agreement must be in force between the Commonwealth and that person or body and
apply in relation to the reported information. In addition, the Secretary must be
satisfied that the reported information will be used or further disclosed only in
accordance with the agreement.
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Clause 147--Publication of information about failure to comply with Chapter
Clause 147 sets out the circumstances in which the Minister may publish
non-compliance information.
Subclause 147(1) provides that the Minister has discretion to publish the identity of
the entity and the detail of the non-compliance in any way the Minister considers
appropriate if the Minister is reasonably satisfied that a reporting entity has failed to
comply with Chapter.
There are procedural fairness requirements set out in subclauses 147(2) and 147(3)
such that the Minister must give the reporting entity written notice of the decision and
the reasons for the decision before publishing the non-compliance information. After
giving notice the Minister may publish the information unless the reporting entity,
within 10 business days after having been given the notice, makes an application to
the Administrative Appeals Tribunal under subclause 147(4) for review of the
decision made by the Minister. Subclause 147(5) provides that if a reporting entity
makes an application for review the Minister is only able to publish the information if
the Administrative Appeals Tribunal affirms or varies the Minister's decision or the
reporting entity withdraws the application for review of the decision.
Part 5.3--Offence and civil penalty provision
Clause 148--Non-compliance with reporting obligations
Clause 148 provides for an offence where a person fails to comply with reporting
obligations.
It includes a fault-based offence, strict liability offence and civil penalty provision.
Subclause 148(2) provides for a fault-based offence of 20 penalty units for
non-compliance with reporting obligations. Subclause 148(3) provides that for the
purposes of subclause 148(2) strict liability applies to paragraph (1)(a) being that the
person is a reporting entity.
Subclause 148(4) provides for extended geographical jurisdiction for the offence. It is
a category D--extended geographical jurisdiction offence. Category D--extended
geographical jurisdiction provides for an offence to extend to conduct by any person
outside Australia even if there is no equivalent offence in the law of the local
jurisdiction (section 15.4 of the Criminal Code). This means that if a reporting entity
in, for example, Asia fails to submit a report it will still be the case that the prohibition
applies.
Subclause 148(5) provides for a strict liability offence with a penalty of 10 penalty
units.
Subclause 148(6) provides for a civil penalty provision with a civil penalty of
20 penalty units. Subclause 148(7) provides for a continuing offence and continuing
contravention of the civil penalty provision. The maximum penalty for each day that a
contravention of subclause 148(2) or (5) continues is 10% of the maximum penalty
that can be imposed in respect of the offence. A note provides that subclauses 148(2)
and 148(5) are continuing offences under section 4K of the Crimes Act 1914.
Subclause 148(8) provides that the maximum civil penalty for each day that a
contravention of subclause 148(6) continues is 10% of the maximum civil penalty that
can be imposed in respect of a contravention of that subsection.
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If an entity were to include false or misleading information in a report it would
potentially be in breach of section 137.1 of the Criminal Code. If the entity were to
knowingly produce documents that are false or misleading in a material particular,
then section 137.2 of the Criminal Code may apply.
A note provides that subclause 148(6) is a continuing civil penalty provision under
section 93 of the Regulatory Powers Act.
Chapter 6--Compliance and enforcement
This chapter deals with compliance and enforcement.
Part 6.1--Introduction
Clause 149--Simplified outline of this Chapter
Clause 149 sets out a simplified outline of Chapter 6.
Part 6.2--Authorised officers
Division 1--Appointment
Clause 150--Appointment of authorised officers
This clause allows the Secretary of the Department to appoint people to assist in
enforcing the legislation.
It confers power on the Secretary to appoint a person who is an Australian Public
Service employee in the Department, 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), and a person who is appointed, employed or engaged
by a State or Territory, or by a local governing body established by or under a law of a
State or Territory; and who has responsibilities in relation to compliance and
enforcement matters concerning control of regulated tobacco items, e-cigarette
products or both.
Specialist training of authorised officers will enable them to perform investigation and
enforcement functions in a way that is appropriate.
Subclause 150(2) provides that the Secretary must not appoint a person as an
authorised officer unless the Secretary is satisfied that the person has suitable
qualifications, training or experience to properly perform the functions, or exercise the
powers, of an authorised officer.
Subclause 150(3) provides that the Secretary may appoint a person mentioned in
paragraph (1)(c) as an authorised officer only with the agreement of the State or
Territory concerned.
Subclause 150(4) provides that an authorised officer is appointed for the period
specified in the instrument of appointment.
A note provides that an authorised officer is eligible for reappointment and refers the
reader to section 33AA of the Acts Interpretation Act 1901.
Consistent with Chapter 7 of the Guide to Framing Commonwealth Offences,
authorised officers must be appointed individually by the Secretary, and the Secretary
must be satisfied that any person appointed has suitable qualifications, training or
experience. The method of appointment provides a safeguard that any authorised
officers appointed will meet certain requirements as to qualifications, training or
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experience as identified by the Secretary. Typically, the Secretary is satisfied that
authorised officers either have formal qualifications relating to government
compliance or investigation, or relevant experience in the field. In practice, all
authorised officers receive tobacco plain packaging compliance training.
This provision is based on the TPP Act but is updated to reflect current usage in the
Acts Interpretation Act definition of APS employee and the meaning of that term in
sections 22 and 72 of the Public Service Act.
Division 2--Powers
Clause 151--Power to require persons to give information or produce documents
Clause 151 applies if an authorised officer believes on reasonable grounds that a
person has information or a document that is relevant to the administration or
enforcement of the Bill.
Subclause 151(2) provides for the power of authorised officers to require information
or the production of documents. There are notice requirements set out in subclauses
151(3) to (5).
Subclause 151(6) provides that it is an offence where the person is given a notice
under subclause 151(2) and fails to comply with that notice with a penalty of 60
penalty units.
Subclause 151(7) provides that a person who fails to comply with a notice given
under subclause 151(2) is liable to pay a civil penalty of 60 penalty units.
Clause 152--Power to require person to attend and answer questions
Clause 152 applies if an authorised officer believes on reasonable grounds that a
person has information that is relevant to the administration or enforcement of the
Bill.
Subclause 152(2) provides for the power of the authorised officer to require a person
to attend and answer questions. Answers to the questions of authorised officers may
be oral or in writing and that authorised officers may question the person on oath or
affirmation.
Subclause 152(7) provides that it is an offence of 60 penalty units if a person fails to
comply with the requirements of the notice and the person refuses or fails to attend
before the specified authorised officer; attends before the specified authorised officer,
but refuses or fails to take an oath or make an affirmation; or attends before the
specified authorised officer, but refuses or fails to answer a question put by, or on
behalf of, that officer. Under subclause 152(8), a person may be liable to a civil
penalty of 60 penalty units for a contravention of this provision.
Clause 153--Self-incrimination and self-exposure
Subclause 153(1) removes the privilege against self-incrimination but in return
subclause 153(2) grants use and derivative use immunity. This means that the person
is required to do such things as answer questions and produce documents but in doing
so this cannot be used against the person in criminal proceedings other than
proceedings or an offence against subclauses 151(6) or 152(7) of this Bill; or sections
137.1 or 137.2 of the Criminal Code (which deal with false or misleading information
or documents) in relation to giving the information, producing the document or
answering the question; or section 149.1 of the Criminal Code (which deals with
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obstruction of Commonwealth public officials) in relation to giving the information,
producing the document or answering the question.
The abrogation of the privilege against self-incrimination operates alongside
subclause 153(2), which would limit the use of potentially self-incriminating
information in certain criminal proceedings. The inclusion of these provisions is
consistent with the Guide to Framing Commonwealth Offences, which provides that
'if the privilege against self-incrimination is overridden; the use of incriminating
evidence should be constrained'. It has the effect that the person must, for example,
answer the question or produce the document but the answer or document cannot be
used against the person to prove an offence.
Subclause 153(2) provides that information, evidence or a statement given, or a
document or thing produced (including the act of giving) are not admissible in
evidence in any criminal proceedings, subject to the exemptions specified. The
exemptions specified are proceedings:
• for an offence of giving false or misleading information, evidence or
documents under sections 137.1 or 137.2 of the Criminal Code that relates to
this Act;
• section 149.1 of the Criminal Code (which deals with obstruction of
Commonwealth public officials) in relation to giving the information,
producing the document or answering the question; or
• for an offence against subclause 151(6) or 152(7) of this Act.
These exemptions are intended to enable information or a statement given, or a
document or thing produced to an authorised officer to be admissible in a limited
range of proceedings that relate to false or misleading information being provided to
the authorised officer, or that relate to an offence under this Bill. Permitting such
information being admissible in evidence in these proceedings is necessary to
safeguard the integrity of information being provided to authorised officers, and the
enforcement of offences under this Bill. The privilege against self-incrimination has
been overridden in the qualified way outlined above to support the authorised
officers' compliance functions to inquire into, and report on, matters of public
importance. The approach gives weight to the public benefit in equipping authorised
officers with appropriate inquiry powers.
Subclause 153(3) provides for the abrogation of privilege against self-exposure to a
penalty. It provides an individual is not excused from giving information, evidence, or
a statement, or producing a document or answering a question under subclause 151(2)
or 152(2) on the basis that at general law, a person would otherwise be able to claim
the privilege against self-exposure to a penalty (other than a penalty for an offence).
The note to subclause 153(3) clarifies that a body corporate cannot claim the privilege
against self-exposure to a penalty.
Penalty privilege is the privilege against self-exposure to a civil or administrative
penalty. It is a common law privilege that applies in the context of judicial
proceedings and may be claimed by an individual to resist compulsion in the course of
such proceedings. Subclause 153(3) clarifies that an individual is not excused from
giving information or answering a question under subclauses 151(2) or 152(2), on the
basis that compliance may expose them to a civil or administrative penalty. This
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reflects the non-judicial character of the authorised officers' information-gathering
powers and ensures that compliance with the relevant provisions is mandatory.
Subclause 153(3) prevents an individual claiming privilege against self-exposure to a
penalty (other than a penalty for an offence) in relation to giving information,
producing a document or answering a question under subclauses 151(2) or 152(2).
The individual is not excused from giving the information, producing the document or
answering the question under that provision on that ground of self-incrimination.
The full application of the privilege against self-incrimination would compromise
investigation and enforcement activities and would result in retailers of tobacco
products unfairly bearing the burden of compliance with the requirements of the Bill,
as retailers are the most readily accessible point for investigation and enforcement.
Authorised officers are often not in a position to observe a transaction that would
form the basis of a contravention of the Bill, as such evidence may only be obtained
from an individual who is a party to a transaction. The type of information that may
be requested from a tobacco company would not be obtainable other than from
representatives of that company, or people who engage in dealings with that company.
Retaining the abrogation of the self-incrimination privilege ensures that evidence is
available, which enables identification of persons who engage in contraventions at an
earlier point in the supply chain.
Appropriately, clauses 153(2) and subsequent subclauses 154(12) and (13) of the Bill
restrict the abrogation of the privilege against self-incrimination and protect an
individual from incriminating themself in a way that would allow evidence to be used
against him or her in criminal proceedings.
Part 6.3--Monitoring and investigation powers
Division 1--Monitoring powers
Clause 154--Monitoring powers
The Regulatory Powers Act provides for a standard suite of provisions in relation to
monitoring, investigation and enforcement powers and are an accepted baseline of
powers for an effective Commonwealth regulatory regime. This is in line with the
broader Commonwealth policy to adopt the powers in the Regulatory Powers Act for
all new Commonwealth Acts which require regulatory powers. The intention in
adopting the Regulatory Powers Act powers in this Bill is to contribute to a coherent,
consistent body of law across Commonwealth regulators. It helps make it easier for
stakeholders who are subject to these powers to understand and comply with the law
and to know their rights and responsibilities.
Clause 154 triggers Part 2 of the Regulatory Powers Act (Monitoring) in relation to
provisions of this Bill and offences against the Crimes Act 1914 or the Criminal
Code that relate to this Bill.
These imported powers include: the power to enter premises, with either the
occupier's consent or under a monitoring warrant (section 18 of the Regulatory
Powers Act), to inspect documents, make copies, operate electronic equipment, and
secure evidence once on the premises (sections 18 to 23 of the Regulatory Powers
Act), and to ask questions and seek the production of documents once on the premises
(section 24 of the Regulatory Powers Act).
These monitoring powers are necessary for the effective administration of the Bill as
they support verification that reporting entities are complying with the Bill.
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Subclause 154(2) provides that information given in compliance with the Bill is
subject to monitoring under Part 2 of the Regulatory Powers Act.
Monitoring powers are used so that the Department, in administering and enforcing
the Bill, can 'check' compliance with the Bill. These powers can be used, for
example, to enter retail premises and inspect product packaging.
Subclause 154(8) provides for additional monitoring powers. For the purposes of Part
2 of the Regulatory Powers Act, the powers mentioned in subclause 154(9) are taken
to be additional monitoring powers for the purposes of determining whether a
provision mentioned in subclause 154(1) has been, or is being, complied with or the
correctness of the information mentioned in subclause 154(2).
The additional monitoring powers are set out in subclause 154(9) and are the power to
sample any thing on premises entered under Part 2 of the Regulatory Powers Act and
the power to remove and test such samples.
Subclause 154(10) permits the use of force against things in executing a warrant. This
is subject to the force being necessary and reasonable in the circumstances.
Subclause 154(12) relates to self-incrimination and provides that despite section 17 of
the Regulatory Powers Act, an individual is not excused from answering a question or
producing a document on the ground that answering the question, or producing the
document, might tend to incriminate the individual in relation to an offence. The
justification for this approach has been discussed above. Subclause 158(13) provides
for a use and derivative use immunity and subclause 158(14) provides that an
individual can rely on the privilege against self-exposure to a penalty only in relation
to a penalty for an offence. A note highlights that a body corporate is not entitled to
claim the privilege against self-exposure to a penalty.
Subclause 154(15) provides that Part 2 of the Regulatory Powers Act, as that Part
applies in relation to the provisions mentioned in subsection 154(1) and the
information mentioned in subsection 154(2), extends to every external Territory.
Clause 155--Consent and identification by authorised officers not required in
certain circumstances
Clause 155 applies if an authorised officer enters the public area of business premises
when they are open to the public and the officer's entry is not made under a
monitoring warrant, the occupier of the premises has not consented to the entry and
the officer's entry is solely for the purpose of exercising monitoring powers to inspect
the retail packaging of tobacco products, purchasing regulated tobacco items or
observing practices relating to the retail sale of regulated tobacco items.
Subclause 155(2) provides that there is no requirement to obtain consent or to show
the authorised officer's identity card.
Subclause 155(3) provides that other rights and obligations are unaffected.
This departure from the usual requirement to seek consent is important for the
effective operation of the compliance regime. It is an appropriate departure given that
an authorised officer would only be accessing public areas in a similar way to a
regular customer. If they were asked to leave the premises, they would need to do so.
The provision facilitates the ability of the authorised officer to survey stores to
determine if further compliance activity is necessary.
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Division 2--Investigation powers
Clause 156--Investigation powers
Part 3 of the Regulatory Powers Act provides powers to investigate (that is, gather
material in relation to) contraventions of offence provisions and civil penalty
provisions.
Clause 156 triggers Part 3 of the Regulatory Powers Act in relation to offences and
civil penalty provisions in this Act and offences against the Crimes Act 1914 or
the Criminal Code that relate to this Act.
These powers include the power to enter into premises by consent or under an
investigation warrant, and the search and seizure of evidential material (see section
49 of the Regulatory Powers Act). An investigation warrant is applied for by an
authorised applicant and issued by an issuing officer (who is either a Magistrate or a
Federal Court judge).
Authorised officers will require these investigation powers to enable the entry of
premises and exercise of investigation powers where the authorised officer suspects
on reasonable grounds that there may be evidential material on the premises related to
the contravention of a civil penalty or offence provision under this Bill.
Subclauses 156(2) to 156(6) make provision for the purposes of Part 3 of the
Regulatory Powers Act. The clauses provide that as Part 3 of the Regulatory Powers
Act applies an authorised officer is both an authorised applicant and an authorised
person in relation to evidential material that relates to a provision mentioned in
subclause 156(1), a magistrate is an issuing officer in relation to evidential material
that relates to a provision mentioned in subclause 156(1), and the Secretary is the
relevant chief executive in relation to evidential material that relates to a provision
mentioned in subclause 156(1). In addition, subclause 156(6) provides that for the
purposes of Part 3 of the Regulatory Powers Act, the courts set out in paragraphs (a)
to (c) are relevant courts in relation to evidential material that relates to a provision
mentioned in subclause (1).
Subclauses 156(7) and (8) provide for additional investigation powers. The additional
investigation powers are the power to sample anything on premises entered under
Part 3 of the Regulatory Powers Act and the power to remove and test such samples.
Subclause 156(9) provides that an authorised person or a person assisting them may
use force in executing a warrant. The use of force allowed by an authorised officer is
only to be exercised against things and not persons, for example in order to open a
door or force a lock. The force is limited to that which is necessary and reasonable in
the circumstances.
Subclause 156(10) provides that 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 subclause (1).
Subclauses 156(11) to (13) relate to self-incrimination. Subclause 156(11) provides
that despite section 47 of the Regulatory Powers Act, an individual is not excused
from answering a question, or producing a document, under subsection 54(3) of that
Act, as Part 3 of that Act applies in relation to this Bill, on the ground that answering
the question, or producing the document, might tend to incriminate the individual in
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relation to an offence. The justification for the approach has been discussed above.
However, this is appropriately balanced by the protection in subclause (12) that the
answer given or document produced is not admissible in criminal proceedings, other
than proceedings for an offence against sections 137.1, 137.2 or 149.1 of the Criminal
Code that relates to this Act. Subclause 156(13) provides that where at general law an
individual is otherwise able to claim the privilege against self-exposure to a penalty
(other than a penalty for an offence) in relation to answering a question, or producing
a document, under subsection 54(3) of the Regulatory Powers Act, the individual is
not excused from answering the question or producing the document under that
subsection on that ground.
Subclause 156(14) provides for the extension of Part 3 of the Regulatory Powers Act,
as that part applies in relation to the provisions mentioned in subclause 156(1) to
every external Territory.
Clause 157--Forfeiture of seized regulated tobacco items
Clause 57 sets out the provisions that will apply where regulated tobacco items are
seized under Part 3 of the Regulatory Powers Act and the seized items do not comply
with a tobacco product requirement.
Subclauses 157(2) to 157(4) relate to the circumstances in which forfeiture notices
may be issued, and the required contents for forfeiture notices.
Subclauses 157(5) to 157(7) provide that the owner of the seized items may apply to a
magistrate for return of seized items within 30 days of a seizure or forfeiture notice.
Subclauses 157(8) and 157(9) relate to forfeiture of seized items to the
Commonwealth and provide that the Secretary may retain, destroy, dispose of
otherwise deal with forfeited seized items as the Secretary sees fit.
Clause 158--Recovery of costs in relation to seized items
This clause provides that, where regulated tobacco items are seized under Part 3 of the
Regulatory Powers Act and a person has been convicted of an offence, or found to
have contravened a civil penalty provision of the Bill in relation to the seized items,
the person is liable to pay to the Commonwealth an amount equal to the costs
reasonably incurred by the Commonwealth in seizing, retaining, destroying or
otherwise dealing with the seized items. Subclause 158(3) provides that an amount
payable by a person under subclause 158(2) is a debt due by the person to the
Commonwealth and may be recovered by action in a court of competent jurisdiction.
Clause 159--Modifications of Part 3 of the Regulatory Powers Act
This clause modifies the time period for returning seized things under Part 3 of the
Regulatory Powers Act from 60 days to 90 days.
The period is extended to 90 days to provide sufficient time for the potential testing of
tobacco products, legal advice to be obtained and properly considered, natural justice
requirements to be met, as well as for related documents to be drafted and
enforcement outcomes to be sought.
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Part 6.4--Enforcing compliance with this Act
Division 1--Civil penalty provisions
Clause 160--Civil penalty provisions
Clause 160 provides that each civil penalty provision in this Bill is enforceable under
Part 4 of the Regulatory Powers Act. This provision triggers Part 4 of the Regulatory
Powers Act, which allows court proceedings to be commenced, seeking an order for a
person to pay a monetary penalty for the contravention of the provision.
Subclause 160(2) sets out that for the purposes of Part 4 of the Regulatory Powers Act
the Secretary is an authorised applicant in relation to civil penalty provisions of the
Bill.
Subclause 160(3) identifies as relevant courts the Federal Court of Australia, the
Federal Circuit and Family Court of Australia (Division 2) and a court of a State or
Territory that has jurisdiction in relation to matters arising under this Bill.
Subclause 160(4) provides that 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.
Subclause 160(5) provides that Part 4 of the Regulatory Powers Act does not make the
Crown in the right of the Commonwealth liable to a pecuniary penalty for breach of a
civil penalty provision of this Bill. It is intended that any entity that enjoys "the shield
of the Crown" will not be liable for a pecuniary penalty for contravention of the Bill.
Division 2--Infringement notices
This Part establishes that an authorised officer can give infringement notices when
they have reasonable grounds to believe a person has contravened a strict liability
offence. This scheme is designed to encourage compliance with the legislative
requirements, without resorting to criminal prosecution or civil penalty proceedings
for minor or first infringements. Alleged major and repeat infringements of the
tobacco product requirements may be pursued through the courts.
The infringement notice scheme is consistent with the requirements of Part 6 of the
Guide to Framing Commonwealth Offences.
The amount of an infringement notice penalty is 60 penalty units for an individual and
600 penalty units for a body corporate. The penalty for infringement notices is not
designed to be a financial penalty to tobacco industry participants but is intended to
serve as a warning that the plain packaging requirements have been breached and
court action could be taken. Infringement notices are intended to mitigate the burden
of compliance on retailers as a result of the relative ease of monitoring and
enforcement at the point of retail sale. Infringement notices will allow infringement
officers to recognise situations in which retailers have little control over
non-compliant products supplied to them, whilst still deterring ongoing
non-compliance.
An infringement notice may be issued for non-compliance with the requirements of
the Bill or any regulations, as an alternative to criminal prosecution or civil penalty
proceedings. Failure to pay the amount specified in an infringement notice may lead
to criminal prosecution or civil penalty proceedings.
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Clause 161--Infringement notices
Subclause 161(1) provides for the provisions which are subject to infringement
notices. These are the strict liability offences under the Bill.
Subclause 161(2) provides that an authorised officer is an infringement officer for this
purpose and in relation to these offences.
The clause also provides for the Secretary to be the relevant chief executive for the
purposes of Part 5 of the Regulatory Powers Act, for extension to external territories
and that the Crown is not liable to be given an infringement notice in relation to the
strict liability offences.
Division 3--Enforceable undertakings
Clause 162--Enforceable undertakings
Subclause 162(1) provides that a provision is enforceable under Part 6 of the
Regulatory Powers Act if it is an offence against this Act or a civil penalty provision
of this Bill.
A note alerts the reader that Part 6 of the Regulatory Powers Act creates a framework
for accepting and enforcing undertakings relating to compliance with provisions.
Subclause 162(2) provides that for the purposes of Part 6 of the Regulatory Powers
Act, the Secretary is an authorised person in relation to the provisions mentioned in
subsection (1).
Subclause 162(3) provides that for the purposes of Part 6 of the Regulatory Powers
Act, the Federal Court of Australia and the Federal Circuit and Family Court of
Australia (Division 2) are relevant courts in relation to the provisions mentioned in
subsection 166(1).
Subclause 162(4) provides that Part 6 of the Regulatory Powers Act, in terms of its
application to the provisions mentioned in subclause (1), extends to every external
Territory.
Division 4--Injunctions
Clause 163--Injunctions
Subclause 163(1) provides that a provision is enforceable under Part 7 of the
Regulatory Powers Act if it is an offence against this Bill or a civil penalty provision
of this Bill.
A note provides that Part 7 of the Regulatory Powers Act allows a provision to be
enforced by obtaining an injunction.
Subclause 163(3) provides that a relevant court includes the Federal Court of
Australia, the Federal Circuit and Family Court of Australia and a court of a State or
Territory that has jurisdiction in relation to matters arising under this Bill.
Subclause 163(4) extends Part 7 of the Regulatory Powers Act to every external
territory.
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Chapter 7--Miscellaneous
This chapter deals with various miscellaneous matters including such things as
general rules about offences and civil penalty provisions, cost recovery and the
constitutional basis for the Bill.
Part 7.1--Introduction
Clause 164--Simplified outline of this Chapter
Clause 164 sets out a simplified outline of Chapter 7.
Part 7.2--General rules about offences and civil penalty provisions
Division 1--Interpretation
Clause 165--Physical elements of offences
Subclause 165(1) provides that this section applies if a provision of this Bill provides
that a person contravening another provision of this Bill commits an offence.
Subclause 165(2) provides that for the purposes of applying Chapter 2 of the Criminal
Code to the offence, the physical elements of the offence are set out in the conduct
provision.
A note provides that Chapter 2 of the Criminal Code sets out general principles of
criminal responsibility.
Clause 166--Contravening an offence provision or a civil penalty provision
Subclause 166(1) provides that the section applies if a provision of this Bill provides
that a person contravening another provision of this Bill commits an offence or is
liable to a civil penalty.
Subclause 166(2) provides that for the purposes of this Bill and where relevant to the
Regulatory Powers Act, a reference to a contravention of an offence provision or a
civil penalty provision includes a reference to a contravention of the conduct
provision.
Clause 167--Offences against this Act--extended meaning
Clause 167 provides that a reference in this Bill to an offence against this Bill includes
an offence against Chapter 7 of the Criminal Code that relates to this Bill.
Division 2--Partnerships, unincorporated associations, and trusts
Clause 168--Treatment of partnerships
Subclause 168(1) provides that this Bill applies to a partnership as if it were a person
but with the changes set out in this clause.
Subclause 168(2) provides that an obligation that would otherwise be imposed on the
partnership by this Bill is imposed on each partner instead but may be discharged by
any of the partners.
Subclause 168(3) provides that an offence against this Bill that would otherwise have
been committed by the partnership is taken to have been committed by each partner in
the partnership who, at the time the offence was committed, engaged in the relevant
conduct; aided, abetted, counselled or procured the relevant conduct; or was in any
way knowingly concerned in, or party to, the relevant conduct (whether directly or
indirectly and whether by any act or omission of the partner).
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Subclause 168(4) provides that this clause applies to a contravention of a civil penalty
provision in a corresponding way to the way in which it applies to an offence.
Subclause 168(5) provides that for the purposes of this Bill, a change in the
composition of a partnership does not affect the continuity of the partnership.
Clause 169--Treatment of unincorporated associations
Subclause 169(1) provides that this Bill applies to an unincorporated association if it
were a person, but with the changes set out in this clause.
Subclause 169(2) provides that an obligation that would otherwise be imposed on the
unincorporated association by this Bill is imposed on each member of the
association's committee of management instead but may be discharged by any of the
members.
Subclause 169(3) provides that an offence against this Bill that would otherwise have
been committed by the unincorporated association is taken to have been committed by
each member of the association's committee of management who, at the time the
offence was committed engaged in the relevant conduct; aided, abetted, counselled or
procured the relevant conduct; or was in any way knowingly concerned in, or party to,
the relevant conduct (whether directly or indirectly and whether by any act or
omission of the member).
Subclause 169(4) provides that this clause applies to a contravention of a civil penalty
provision in a corresponding way to the way in which it applies to an offence.
Clause 170--Treatment of trusts
Clause 170 applies to trusts as if each were a person, subject to the modifications set
out in this clause.
Where a trust has a single trustee, subclause 170(2) provides that an obligation that
would otherwise be imposed on the trust by this Bill is instead imposed on the trustee
and an offence against this Bill that would otherwise have been committed by the trust
is taken to have been committed by the trustee.
Where a trust has multiple trustees, subclause 170(3) provides that an obligation that
would otherwise be imposed on the trust by this Bill is imposed on each trustee
instead, but may be discharged by any of the trustees and an offence against this Bill
that would otherwise have been committed by the trust is taken to have been
committed by each trustee of the trust, at the time the offence was committed, who
engaged in the relevant conduct; aided, abetted, counselled or procured the relevant
conduct; or was in any way knowingly concerned in, or party to, the relevant conduct
(whether directly or indirectly and whether by any act or omission of the trustee).
Further, subclause 170(4) provides that this clause applies to a contravention of a civil
penalty provision in a corresponding way to the way in which it applies to an offence.
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Part 7.3--Cost recovery
Part 7.3 sets out provisions that are intended to, among other things, allow the relevant
Department to charge fees to industry for carrying out activities in the performance of
functions or the exercise of powers under the Bill.
Cost recovery provisions are included consistent with whole of government policy. It
will be necessary for cost recovery to be considered in the future and any cost
recovery would be in line with requirements for a Cost Recovery Impact Statement.
Chapter 3, Division 4 allows for regulations to set out the details of tobacco product
standards. It may be that the Commonwealth may in the future make standards for
which cost recovery of testing is appropriate.
Clause 171--Fees for fee-bearing activities
Subclause 171(1) provides that the regulations may prescribe fees that may be
charged in relation to activities carried out by, or on behalf of, the Commonwealth in
the performance of functions or the exercise of powers under this Bill.
Subclause 171(2) sets out in paragraphs 171(2)(a) to (f) what the regulations may do.
Subclause 171(3) further provides that the regulations may specify that the amount of
a fee is the cost incurred by the Commonwealth in arranging and paying for another
person to carry out the relevant activity.
Subclause 171(4) specifies that a fee prescribed must not amount to taxation.
Clause 172--Paying fees
Clause 172 provides that the regulations may prescribe the time when a specified fee
is due and payable.
Clause 173--Person liable to pay fees
Clause 178 provides that the regulations may prescribe one or more persons who are
liable to pay a specified fee.
Clause 174--Late payment fee
Subclause 174(1) provides that if the regulations specify the time when a fee is due
and payable, the regulations may also specify a fee that is due and payable if the basic
fee is not paid at or before that time.
Subclause 174(2) provides that the late payment fee may relate to each day or part day
of a day that the basic fee remains unpaid after becoming due and payable.
Clause 175--Recovery of fees
Clause 180 provides that a fee, including a late payment fee, that is due and payable to
the Commonwealth under this Bill may be recovered as a debt due to the
Commonwealth by action in a court of competent jurisdiction.
Clause 176--Secretary may remit or refund fees
Subclause 176(1) provides that the Secretary may remit or refund the whole or part of
a fee (including for late) that is payable, or that has been paid, to the Commonwealth
if the Secretary is satisfied there are circumstances that justify doing so.
Subclause 176(2) provides that the Secretary may remit or refund such fees either at
their own initiative or via written application by a person.
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Clause 177--Secretary may direct that activities not be carried out
Clause 177 provides that if a person is liable to pay a fee that is due and payable, the
Secretary may refuse to carry out, or direct a person not to carry out, specified
activities or kinds of activities in relation to the debtor under this Bill until the fee has
been paid.
Part 7.4--Constitutional provisions
Clause 178--Constitutional basis of this Act
Clause 178 sets out the constitutional basis for the Bill.
The main constitutional basis of the Bill, set out in subclause 178(1), is the external
affairs power. However, this is not the case for Part 2.4 (prohibition of e-cigarette
advertisements), Part 2.5 (prohibition of e-cigarette sponsorships) and Chapter 4
(permanent bans on certain tobacco products).
A note provides that the provisions mentioned above, set out in subclause 183(2),
have limited constitutional operation.
Clause 179--Additional operation of this Act
In addition to clause 178 the Bill also has effect as provided by subclauses 179(3) to
179(7) which relates to the trade and commerce power, the communications power,
the intellectual property power, the corporations power, the geographically external
aspect of the external affairs power, and the territories power. Only the principal
alternative heads of power are referenced.
Subclause 179(9) provides that the clause does not apply to certain provisions,
including Part 2.4 (prohibition of e-cigarette advertisements), Part 2.5 (prohibition of
e-cigarette sponsorships), Part 3.5 (offences and civil penalty provisions relating to
constitutional corporations--tobacco product requirements) and Chapter 4 (permanent
bans on certain tobacco products).
A note provides that the provisions mentioned in this subclause already have limited
constitutional operation.
Clause 180--Acquisition of property
The Bill has been drafted so as to avoid the potential for any acquisition of property
other than on just terms that would be contrary to section 51(xxxi) of the Constitution.
Clause 180 provides that the Bill does not apply to the extent it involves an
acquisition of property other than on just terms.
Part 7.5--Other matters
Clause 181--Delegation by Minister
Subclause 181(1) provides that the Minister may, in writing, delegate the Minister's
functions or powers under:
• subclause 130(3) (about prescribing a person to be a reporting entity);
• clause 145 (about publishing Chapter 5 reports and information); and
• clause 147 (about publishing non-compliance information in relation to
Chapter 5),
to the Secretary of the Department.
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A note refers to sections 34AA to 34A of the Acts Interpretation Act 1901 which
contain extra rules about delegation.
Subclause 181(2) provides that in exercising functions or powers delegated under
subclause 181(1), the Secretary must comply with any directions of the Minister.
The following powers are not delegable, and accordingly must be exercised by the
Minister personally:
• subclause 10(3)--Meaning of tobacco product accessory;
• subclause 11(3)--Meaning of e-cigarette;
• subclause 12(3)--Meaning of e-cigarette accessory;
• subclause 20(7)--Meaning of tobacco advertisement;
• subclause 43(3)--Meaning of e-cigarette advertisement;
• subclause 77(3)--Meaning of prohibited term;
• subclause 124(2)--Regulations may prescribe additional requirements;
• subclause 130(3)--Meaning of reporting entity; and
• subclause 144(2)--Regulations may prescribe additional requirements.
The role of the Chief Medical Officer in recommending new health warnings, health
promotion inserts and images or text on tobacco products is not delegable.
The delegation of the specified functions to the Secretary represents an appropriately
limited class of functions for delegation and delegation level.
Clause 182--Delegation by Secretary
Subclause 182(1) provides that the Secretary may delegate some or all of their powers
under this legislation to an employee who is a member of the Senior Executive
Service (SES) or acting SES employee in the Department.
The Secretary's main functions, powers and duties under the Act are appointing
authorised officers and being the relevant chief executive for the exercise of specified
powers under the Regulatory Powers Act.
Subclause 182(2) provides that the functions or powers that may be delegated under
subclause 182(1) include functions or powers the Secretary has as a relevant chief
executive, authorised applicant, or authorised person for the purposes of a provision
of the Regulatory Powers Act because of this Bill. Subclause 182(3) further provides
that in exercising functions or powers delegated under subclause 182(1), the delegate
must comply with any directions of the Secretary.
The level of delegation is confined to members of the SES who are senior public
service employees. This is an appropriate limitation on the category of people that
may be authorised to exercise those powers.
Clause 183--Protection from liability
Subclause 183(1) provides for protected persons in relation to liability under the Bill.
It applies to the Minister, the Secretary, an authorised officer, and a person acting
under an authorised officer's direction or authority.
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Subclause 183(2) provides that a protected person is not liable to civil proceedings for
loss, damage or injury of any kind suffered by another person as a result of anything
done by the protected person in good faith when performing functions or exercising
duties under this Bill. The purpose of this provision is to protect those who are
performing or exercising legislated requirements from personal civil liability.
This is necessary because there are specific risks under this Bill that actions done in
compliance with the Bill could be perceived as, for example, defamatory. For
example, the publication of information about failure to comply with Chapter 5
(clause 152). Clause 183 makes it clear that those who act in good faith in
administering this Bill are protected from these kinds of legal proceedings.
The approach concentrates attention on the effective pursuit of the regime. At times
such protected persons will need to act quickly and efficiently. Where a protected
person is acting in good faith to further the objectives of the scheme they should not
be at risk of action for civil liability.
Clause 184--Reports
Subclause 184(1) provides that as soon as practicable after the end of each financial
year, the Secretary must cause to be prepared a report on the number and nature of
any contraventions of this Bill occurring in the financial year and action taken in
response to each contravention.
Subclause 184(2) provides that a person who prepares a report under subclause (1)
must give a copy to the Minister and subclause 184(3) provides that the Secretary
must cause the report to be included in the annual report of the Department for that
financial year.
Clause 185--Regulations
Subclause 185(1) provides a general regulation-making power that will permit the
Governor-General to make regulations required or permitted by the Bill, or necessary
or convenient to give effect to the Bill.
Subclause 185(2) relates to regulations concerning regulated tobacco items. It
provides that before making regulations for the purpose of a provision in subclause
185(3), the Minister must be satisfied that the proposed regulations will advance the
objects in paragraphs 3(1)(a) and (b) of the Bill.
Subclause 185(4) relates to regulations concerning e-cigarette products. It provides
that before making regulations for the purposes of a provision in subclause 185(5), the
Minister must be satisfied that he proposed regulations will advance the objects in
paragraphs 3(1)(a) and 3(1)(c) of the Bill.
Subclause 185(6) provides that the regulations may make provision in relation to a
matter by applying, adopting or incorporating, with or without modification, any
matter contained in an instrument or other writing as in force or existing at a particular
time or as in force or existing from time to time. Where it is the case that any other
instruments or external material is incorporated it will be made clear in the
explanatory materials for those regulations how such materials can be freely accessed.
Subclause 185(8) provides for the regulations to include a temporary exemption under
the Trans-Tasman Mutual Recognition Act 1997. A note provides that the exemption
operates for a period of up to 12 months.
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Public Health (Tobacco and Other Products) (Consequential Amendments and
Transitional Provisions) Bill 2023
Notes on clauses
Clause 1--Short title
This clause provides that the Bill, once enacted, may be cited as the Public Health
(Tobacco and Other Products) (Consequential Amendments and Transitional
Provisions) Act 2023.
Clause 2--Commencement
Clause 2 provides for the commencement of the provisions in this Bill.
Clauses 1 to 3 and anything not otherwise covered by the table commence on the day
the Act receives the Royal Assent.
Schedules 1 and 2 commence at the same time as clause 3 of the main Bill, being the
Public Health (Tobacco and Other Products) Bill 2023.
Clause 3--Schedules
Clause 3 provides that legislation specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.
Schedule 1--Repeals and consequential amendments
Part 1--Repeals
Item 1--The whole of the Act--Tobacco Advertising Prohibition Act 1992
Item 2--The whole of the Act--Tobacco Plain Packaging Act 2011
Items 1 and 2 repeal the Tobacco Advertising Prohibition Act 1992 and the Tobacco
Plain Packaging Act 2011.
The repeal of the Tobacco Advertising Prohibition Act 1992 and the Tobacco Plain
Packaging Act 2011 is consequential to the consolidation and streamlining of these
provisions in the Public Health (Tobacco and Other Products) Act 2023.
Part 2--Consequential Amendments
Broadcasting Services Act 1992
Item 3--Paragraph 7(1)(a) of Schedule 2
Item 4--Paragraph 8(1)(a) of Schedule 2
Item 5--Paragraph 9(1)(a) of Schedule 2
Item 6--Paragraph 10(1)(a) of Schedule 2
Item 7--Paragraph 11(1)(a) of Schedule 2
Item 8--Clause 6 of Schedule 6
Item 9--Clause 6 of Schedule 6
Item 10--At the end of clause 6 of Schedule 6
Item 11--Paragraph 24(1)(b) of Schedule 6
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Items 3 to 11 make amendments to the Broadcasting Services Act 1992 as a
consequence of the repeal of the Tobacco Advertising Prohibition Act 1992. The
references to that Act are substituted with references to the Public Health (Tobacco
and Other Products) Act 2023.
In addition, e-cigarette advertisements have been added to the conditions on various
licenses under the Broadcasting Services Act 1992, which will have the effect of
licensees not being able to broadcast or transmit an e-cigarette advertisement,
consistent with existing license conditions for tobacco advertisements. Tobacco
advertisement and e-cigarette advertisement are both defined terms in the main Bill.
Competition and Consumer Act 2010
Item 12--Section 87D (definition of smoking)
Item 13--Section 87D (definition of tobacco product)
Item 14--Section 130 (definition of smoking)
Item 15--Section 130 (definition of tobacco product)
Items 12 to 15 make amendments to the Competition and Consumer Act 2010 as a
consequence of the repeal of the Tobacco Advertising Prohibition Act 1992. The
references to that Act are substituted with references to the Public Health (Tobacco
and Other Products) Act 2023.
Criminal Code Act 1995
Item 16--Paragraph 320.2(2)(b) of the Criminal Code
Item 16 amends the Criminal Code as a consequence of the repeal of the Tobacco
Advertising Prohibition Act 1992. The reference to that Act is substituted with a
reference to the Public Health (Tobacco and Other Products) Act 2023.
Social Security (Administration) Act 1999
Item 17--Section 123TC (definition of tobacco product)
Item 17 repeals the definition of tobacco product at section 123TC of the Social
Security (Administration) Act 1999 and substitutes a new definition. The new
definition of tobacco product provides that it means a tobacco product within the
meaning of the Public Health (Tobacco and Other Products) Act 2023; or an
e-cigarette product (within the meaning of that Act) that contains tobacco.
Taxation Administration Act 1953
Item 18--Paragraph 308-55(1)(a) in Schedule 1
Item 19--Paragraph 308-55(1)(b) in Schedule 1
Items 18 and 19 amend the Taxation Administration Act 1953 to omit references to
the repealed Tobacco Plain Packaging Act 2011 and to substitute references to the
new Public Health (Tobacco and Other Products) Act 2023.
Item 20 After paragraph 308-55(1)(e) in Schedule 1
Item 20 inserts a new paragraph (ea) to provide that 'a permanent ban under Chapter 4
of the Public Health (Tobacco and Other Products) Act 2023 applies to the tobacco'
for the purposes of paragraph 308-55(1). This paragraph relates to matters taken to
satisfy the "reasonable to suspect" requirement.
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Trade Marks Act 1995
Item 21--Subsection 231(2) (note)
Item 22--Section 231A (heading)
Item 23--Subsection 231A(1)
Item 24--Subsection 231A(1) (note)
Item 25--Subsection 231A(2)
Items 21 to 25 amend the Trade Marks Act 1995 to omit references to the repealed
Tobacco Plain Packaging Act 2011 and substitute references to the Public Health
(Tobacco and Other Products) Act 2023.
Schedule 2--Application, saving and transitional provisions
Part 1--Preliminary
Item 1--Definitions
Subitem 1 sets out definitions relevant to the transition to the new provisions.
Commencement day is defined to mean the day section 3 of the new Act commences.
It is a useful reference point to describe when the provisions take effect.
Main transition period means the period of 12 months beginning on the
commencement day. The reference to "main" is because there is an additional
"retailer transition period" which relates only to retailers.
New Act means the Public Health (Tobacco and Other Products) Act 2023.
Old TPP Act means the Tobacco Plain Packaging Act 2011.
Retailer transition period means the period of 3 months beginning after the end of the
main transition period. There is an additional period of transition provided for retailers
to provide for a sell-through period of stock on hand.
Tobacco Information Standard means the Competition and Consumer (Tobacco)
Information Standard 2011.
Subitem 2 provides that an expression used in this Schedule that is also used in the
new Act has the same meaning in this Schedule as it has in the new Act.
Item 2--Section 7 of the Acts Interpretation Act 1901
Item 2 provides that this Schedule does not limit the effect of section 7 of the Acts
Interpretation Act 1901as it applies in relation to the repeals and amendments made
by this Act.
Part 2--Tobacco and e-cigarette sponsorships
Item 3--Prohibition of tobacco sponsorships--application
Item 4--Prohibition of e-cigarette sponsorships--application
Items 3 and 4 provide for the application of sections 38 and 65 of the new Act which
are the prohibition on entering into tobacco and e-cigarette sponsorships respectively
and a prohibition on making contributions intended to promote tobacco and e-
cigarettes.
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The new Act applies in relation to a contribution made, arrangement, agreement or
understanding that is entered into, or a promise or undertaking that is given on or after
the commencement day.
Part 3--Tobacco product requirements--transitional arrangements
Division 1--Preliminary
Item 5--Purpose of this Part
Item 5 sets out the purpose of this Part. The Part makes provision for transitional
arrangements in relation to certain tobacco product requirements in Chapter 3 of the
new Act during the main transition period.
A note provides that Division 3 extends these arrangements for retailers by a further 3
months.
Division 2--Main transitional arrangements
Items 6 to 14 set out the main transitional arrangements relating to plain packaging.
The provisions relate to plain packaging requirements for physical features, colour
and finish, marks, brand names and variant names, health warnings, mandatory
markings, wrappers, and inserts and onserts (other than health promotion inserts) in
relation to tobacco packaging. The provisions have the effect that compliance with the
relevant sections of the TPP Act and the Tobacco Information Standard will mean
compliance with the new requirements during the main transition period.
Item 6--Plain packaging--physical features
Item 6 applies if the retail packaging of tobacco products complies with the
requirements of section 18 of the old TPP Act, as in force immediately before the
commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements of section 74 of the new Act.
Item 7--Plain packaging--colour and finish
Item 7 applies if the retail packaging of the tobacco products complies with
requirements of section 19 of the old TPP Act, as in force immediately before the
commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements of subsection 75(1) of the new Act.
Item 8--Plain packaging--marks
Item 8 applies if the retail packaging of tobacco products complies with the
requirements of section 20 of the old TPP Act, as in force immediately before the
commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements of section 77 of the new Act except insofar as it relates to brand names
or variant names.
Item 9--Plain packaging--brand names and variant names
Item 9 applies if the retail packaging of tobacco products complies with the
requirements of section 21 of the old TPP Act, as in force immediately before the
commencement day.
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During the main transition period, the retail packaging is taken to comply with the
requirements of section 77 of the new Act, insofar as it relates to brand names or
variant name.
Item 10--Plain packaging--health warnings
Item 10 applies if the retail packaging of tobacco products complies with the
requirements of the Tobacco Information Standard, as in force immediately before the
commencement day.
Where the retail packaging of cigarettes or other smoked tobacco products displays
the health warnings required by either Part 3 or Part 4 of the Tobacco Information
Standard then, despite section 9.5 of the Standard, the retail packaging is taken to
comply with the requirements of the Standard.
During the main transition period, the retail packaging is taken to comply with the
requirements of subsection 78(1) of the new Act.
Item 11--Plain packaging--mandatory markings
Item 11 applies if the retail packaging of tobacco products complies with the
requirements of section 20 and subsection 21(4) of the old TPP Act, as in force
immediately before the commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements of section 79 of the new Act.
Item 12--Plain packaging--wrappers
Item 12 applies if the retail packaging of tobacco products complies with the
requirements of section 22 of the old TPP Act, as in force immediately before the
commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements of section 80 of the new Act.
Item 13--Plain packaging--inserts and onserts (other than health promotion
inserts)
Item 13 applies if the retail packaging of tobacco products complies with the
requirements of section 23 of the old TPP Act, as in force immediately before the
commencement day.
During the main transition period, the retail packaging is taken to comply with the
requirements (other than in relation to health promotion inserts) of subsections 82(1)
and (2) of the new Act.
A note provides that for application provisions in relation to the health promotion
inserts required to be included in retail packaging by paragraph 82(1)(a) of the new
Act, see item 20.
Item 14--Tobacco products--appearance and physical features (other than
prohibited terms)
Item 14 applies if a tobacco product complies with the requirements of section 26 of
the old TPP Act, as in force immediately before the commencement day.
During the main transition period, the tobacco product is taken to comply with the
requirements of subsections 86(2), (3) and (4) of the new Act.
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Note 1 provides that for application provisions in relation to the appearance of
prohibited terms on tobacco product, see item 22.
Note 2 provides that for application provisions in relation to the dimensions of a
cigarette, see item 23.
Note 3 provides that for application provisions in relation to filter tips in tobacco
products, see item 24.
Division 3--Extended transitional arrangements for retailers
Item 15--Scope of Division
Subitem 15(1) provides that Division 3 applies in relation to a person who, on or after
the commencement day, sells tobacco products by retail sale or offers such products
for retail sale.
Subitem 15(2) provides the relevant sell-through provisions and in particular that the
Division applies in relation to the following provisions in the new Act:
• section 94 (selling or supplying tobacco products in non-compliant retail
packaging);
• section 96 (possessing tobacco products in non-compliant retail packaging;
• section 108 (selling or supply tobacco products in non-compliant retail
packaging to a constitutional corporations); and
• section 110 (possessing tobacco products in non-compliant retail packaging
obtained from a constitutional corporation).
Item 16--Extended transitional arrangements for retailers
Item 16 provides that a retailer who engages in conduct does not contravene a sell-
through provision in relation to a tobacco product requirement that applies to a
tobacco product under the new Act if: the retailer engages in the conduct during the
retailer transition period; the tobacco product requirement relates to the retail
packaging of tobacco products; the tobacco product was supplied to the retailer in the
retail packaging before the start of the retailer transition period and at the time of that
supply, the retail packaging of the tobacco product was taken to comply with the
tobacco product requirement because of the operation of Division 2 of this Part.
Part 4--Tobacco product requirements--application of new measures
Division 1--Preliminary
Item 17--Purpose of this Part
Item 17 provides for the purpose of this Part. This Part makes provision for the
application of certain tobacco product requirements in Chapter 3 of the new Act after
the end of the main transition period.
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Division 2--Application of new tobacco product requirements
Item 18--Plain packaging--standardisation
Item 19--Plain packaging--prohibited tobacco product accessories
Item 20--Plain packaging--health promotion inserts
Items 18 to 20 relate to plain packaging--standardisation, prohibited tobacco product
accessories and health promotion inserts. They apply the new requirements in relation
to the retail packaging of tobacco products after the end of the main transition period.
Item 21--Prohibited terms--brand names and variant names
Item 21 relates to prohibited terms--brand names and variant names. It provides that
the tobacco product requirement in the new Act applies in relation to brand names and
variant names of tobacco products after the end of the main transition period.
Item 22--Tobacco products--appearance of prohibited terms
Item 22 relates to tobacco products--appearance of prohibited terms. It provides that
the tobacco product requirement in the new Act applies in relation to tobacco products
after the end of the main transition period.
Item 23--Tobacco products--physical features (dimensions of a cigarette)
Item 23 relates to tobacco products--physical features (dimensions of a cigarette). It
provides that the tobacco product requirement in s 86(4) of the new Act, insofar as it
relates to the dimensions of a cigarette, applies in relation to cigarettes after the end of
the main transition period.
A note provides that subsection 86(4) of the new Act allows the regulations to
prescribe requirements in relation to the physical features of a tobacco product, such
as the dimensions of a cigarette.
Item 24--Tobacco products--physical features (filter tips)
Item 24 relates to tobacco products--physical features (dimensions of a cigarette). It
provides that the tobacco product requirement in s 86(4) of the new Act, insofar as it
relates to filter tips, applies in relation to filter tips after the end of the main transition
period.
A note provides that subsection 86(4) of the new Act allows the regulations to
prescribe requirements in relation to the physical features of a tobacco product, such
as filter tips.
Item 25--Tobacco products--contents (ingredients)
Item 25 relates to tobacco products--contents (ingredients). It provides that the
tobacco product requirement in the new Act applies in relation to tobacco products
after the end of the main transition period.
Item 26--Tobacco products--prohibited devices
Item 26 relates to tobacco products--prohibited devices. It provides that the tobacco
product requirement in the new Act applies in relation to tobacco products after the
end of the main transition period.
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Item 27--Tobacco product accessories--prohibited functions
Item 27 relates to tobacco product accessories--prohibited functions. It provides that
the new requirement applies in relation to tobacco product accessories after the end of
the main transition period.
Part 5--Reporting
Item 28--Reporting entities--financial year reports
Item 28 relates to reporting entities and the timing of their reports. Item 28 provides
that, in relation to reports about tobacco product ingredients, tobacco product volumes
and marketing and promotional expenditure, the obligation to submit a report applies
in relation to the 2024-2025 financial year and each later financial year.
Part 6--Administration
Item 29--Compliance and enforcement
Item 29 provides transitional provisions which relate to compliance and enforcement.
It provides that Parts 6.2 and 6.3 of the new Act (which relate to the appointment and
powers of authorised officers, and trigger monitoring and investigation powers under
the Regulatory Powers (Standard Provisions) Act 2014) apply for the purposes of
ensuring compliance with this Schedule.
Item 30--Reports under repealed Tobacco Advertising Prohibition Act 1992
Item 30 provides that, despite the repeal of the Tobacco Advertising Prohibition Act
1992, the reporting requirement in section 34A of that Act continues to apply in
relation to the financial year ending on 30 June 2024.
Item 31--Reports under old TPP Act
Item 33 provides that, despite the repeal of the old TPP Act, section 108 of that Act
continues to apply in relation to the financial year ending on 30 June 2024.
Item 32--Reports under new Act
Item 32 relates to reports under the new Act and provides that section 184 of the new
Act applies in relation to the 2023-2024 financial year and each later financial year.
Part 7--Transitional Rules
Item 33--Transitional Rules
Item 33 provides for the Minister to make rules, by legislative instrument, prescribing
matters required or permitted by this Act to be prescribed by the rules or necessary or
convenient to be prescribed for carrying out or giving effect to this Act.
Subitem 33(2) provides that, without limiting subitem (1), the rules may prescribe
matters of a transitional nature (including prescribing any saving or application
provisions) relating to the amendments or repeals made by this Act or the enactment
of a new Act.
Subitem 33(3) provides that the rules may not do any of the things specified in
paragraphs (3)(a) to (e). Subitem 33(4) provides that this Schedule, other than
subitem (3), does not limit the rules that may be made for the purposes of subitem (1).
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Addendum
Executive Summary
In Australia, tobacco use is a leading cause of preventable death and disease and is a
key health risk factor.i The Australian Government is committed to reducing the
prevalence of tobacco use and associated costs, consistent with its obligations as a
party to the World Health Organization (WHO) Framework Convention on Tobacco
Control (FCTC).ii
The regulatory reforms and non-regulatory measures implemented by Australian
Governments over the past 50+ years has contributed to Australia's smoking
prevalence being amongst the lowest in the world. However, there is more that can be
done to further reduce the preventable death and disability caused by tobacco product
use and to reduce the tobacco industry's ability to undermine tobacco control
measures.iii
The National Tobacco Strategy 2023-2030 (NTS) and National Preventive Health
Strategy (NPHS) 2021-2030 include the following targets in respect to tobacco
control:
• achieve a national daily smoking prevalence66 for adults (≥18 years) of less
than 10 per cent by 2025, and 5 per cent or less by 2030; and
• reduce the daily smoking rate among First Nations peoples (≥15 years) to 27
per cent or less by 2030. iv v
The NTS is a component of the National Drug Strategy 2017-2026 and sets out a
national policy framework for the Commonwealth, state and territory governments to
work together, in collaboration with non-government organisations (NGO), to
improve the health of all Australians by reducing the prevalence of tobacco use and its
associated health, social, environmental and economic costs and the inequalities it
causes.vi The NTS underwent two rounds of public Consultation, with outcomes
highlighting the need for ongoing regulation and additional tobacco control measures.
The NTS was endorsed by all Australian governments and released on 2 May 2023.
Current settings and tobacco control investments are unlikely to achieve the smoking
targets outlined in these national strategies. Despite Australia's success in tobacco
control, further regulatory measures and increased program investments are required
to meet these targets.vii Achieving the Government's targets for a national daily
smoking prevalence requires a 7 per cent reduction in the number of daily smokers
(approximately 150,000 people) in Australia in the next two years, and a 53 per cent
reduction in the next eight years (approximately 1.2 million people).
The primary objectives of government action are to reduce the daily smoking
prevalence by discouraging uptake among people who do not smoke and increasing
cessation among people who do smoke. Secondary objectives have also been
identified that have less direct impact on smoking prevalence but would support
measures to meet the primary objectives. These include ensuring Australia's tobacco
66 As tobacco smoking remains the predominant form of tobacco use in Australia by a wide margin, all prevalence estimates in this document refer to tobacco smoking
unless stated otherwise.
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control regulatory framework aligns with international best practice and international
precedents, and the receipt of more sales and advertising information to increase
transparency and inform policy development.
In line with Australian Government guidance, this Impact Analysis (IA) examines
options (including evidence, data, and analysis of the broader costs and benefits) to
address the following inefficiencies and limitations of the Commonwealth's tobacco
control framework and to drive a continued reduction in smoking prevalence in
Australia:
A. There are multiple pieces of legislation governing tobacco control within
Australia, which creates ambiguity regarding compliance, and duplication of
reporting and enforcement. This is proposed to be addressed through a range of
measures to:
1. Consolidate existing legislation to reduce red tape and the possible
duplication of portfolio responsibility for policy and enforcement.
2. Update and improve health warnings on tobacco products to better inform
consumers on the effects of tobacco use.
3. Improve coverage, enforcement, and compliance for tobacco control
through updating advertising restrictions, definitions, and movement to a
civil penalties regime.
4. Expand advertising prohibitions to reduce the public's exposure to the
advertising and promotion of e-cigarettes and other novel and emerging
products, particularly in young and vulnerable people.
B. The current tobacco framework does not effectively respond to changes in the
market and products which considerably influence consumer behaviour and seek
to undermine existing tobacco control measures. This is proposed to be addressed
through a number of measures, including to:
5. Standardise tobacco product size (pack, pouch, and cigarette stick sizes) as
this product differentiation makes a product more attractive to consumers,
including youth.
6. Restrict the use of additives that enhance the attractiveness and palatability
of tobacco products.
7. Regulate product design features that make tobacco products more
attractive to consumers, including crush balls and novel filters.
8. Prohibit the use of brand and variant names falsely implying reduced harm.
9. Require Health Promotion Inserts to encourage and empower people who
smoke to quit.
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10. Require mandatory disclosure of sales volumes and pricing (10A),
disclosure of tobacco advertising and, promotion expenditure (10B) to
support policy development, implementation, and evaluation of tobacco
control initiatives.
11. Protect tobacco control policy from commercial and other vested interests.
12. Require dissuasive measures on factory-made-cigarettes to reduce appeal of
smoking, reduce smoking uptake and increase cessation.
The Department of Health and Aged Care's (the Department's) tobacco control
regulations are due to sunset on 1 April 2024. 67 In accordance with the Legislation
Act 2003, the Department undertook a review of its tobacco control legislation to
ensure it remains fit-for-purpose, kept up to date, and is in force as long as it is
needed. viii This review is referred to as the Thematic Review (the Review).
The Review applies to the following legislation:
• Tobacco Advertising Prohibition Act 1992 (TAP Act)
• Tobacco Advertising Prohibition Regulation 1993 (TAP Regulation)
• Tobacco Plain Packaging Act 2011 (TPP Act)
• Tobacco Plain Packaging Regulation 2011 (TPP Regulation).
In 2019, two broad consultations were undertaken to inform the Review: an online
public consultation (January-May 2019) followed by a series of stakeholder
workshops (May-July 2019).ix Feedback from these consultations established that
regulatory improvements should be made and that there is a need for ongoing
regulation to achieve the Australian Government's objectives with respect to tobacco
control. These consultations informed the development of the proposed Exposure
Draft of the Public Health (Tobacco and Other Products) legislation package
(Exposure Draft). The legislation package comprises:
• Public Health (Tobacco and Other Products) Bill 2023 (the Bill);
• Public Health (Tobacco and Other Products) Regulations 2023;
• Public Health (Tobacco and Other Products) Consequential and Transitional
Bill 2023; and
• Public Health (Tobacco and Other Products) Consequential and Transitional
Regulations 2023.
The Exposure Draft was released for public comment between 31 May 2023 and
14 July 2023, on the Department's engagement platform, Consultation Hub. In
addition, targeted consultation sessions were conducted by external consultants, Allen
and Clarke Consulting, with public health experts and First Nations representatives to
understand the impact of the Exposure Draft. Tobacco industry representatives also
attended targeted consultation sessions with Allen and Clarke Consulting, to
understand implementation considerations of the Exposure Draft (consistent with
Article 5.3 of the WHO FCTC).
67 As part of the Legislation Act 2003, the Australian Government introduced changes to the sunsetting arrangements for legislative instruments so that they automatically cease to apply, unless an active decision has been
made to retain them. The aim of the arrangements is to ensure that legislative instruments are kept up to date and only remain in force so long as they are needed.
111
Feedback on the Exposure Draft was received from a wide array of stakeholders,
including public health non-government organisations, academics, government
agencies, industry peak bodies, private businesses and individuals.
In general, submissions followed a number of key themes:
• non-industry related stakeholders were supportive of the proposed Exposure
Draft, whilst also providing additional areas to strengthen to better promote
health objectives, and introduce greater restrictions on tobacco and e-cigarette
industry engagement.
• Industry stakeholders had different views on the impact of the Exposure
Draft's implementation, but generally raised concerns about how it may
impact the illicit market.
• A key area of agreement across industry/non-industry stakeholders related to
the need for greater support for compliance and enforcement to implement the
legislation. They also considered the effectiveness of the Exposure Draft
towards achieving its stated objectives will be dependent on effective
compliance and enforcement by the Australian Government.
• There were divergent views on the timing of implementation of reforms
amongst key stakeholders. Industry stakeholders considered they needed more
time to implement the measures, such as removing the proposed prohibited
ingredients from their products, making adjustments to tobacco packaging,
providing for the addition of inserts to product packages, and establishing
reporting regimes. In contrast, public health stakeholders and First Nations'
peoples considered that the proposed tobacco control measures build on the
success of Australia's tobacco control measures, should go further and be
introduced at the earliest possible opportunity.
The IA commenced following public consultation undertaken in 2019 to inform the
thematic review of tobacco control legislation in Australia and to identify
opportunities for regulatory changes.
Drawing on the public consultation, the reviews conducted as part of the development
of the NTS,x international best practice and the evidence base, the Department
developed the proposed measures outlined in this IA to respond to the identified
problems.
In July 2021, a draft Regulation Impact Statement was provided to the then Office of
Best Practice Regulation for consideration and was considered well developed for the
stage of policy development and suitable to inform an early policy decision.
On 30 November 2022, taking into account a further draft IA which had received a
formal early assessment compliant rating from the Office of Impact Analysis (OIA),
the Minister for Health and Aged Care, the Hon Mark Butler MP announced the
Government's proposal to develop new legislation to reduce smoking rates. The draft
IA addressed questions one to 4 of the 7 IA questions.
The release of the exposure draft of the Public Health (Tobacco and Other Products)
legislation for public consultation on 31 May 2023 informed the further development
112
of this IA including consideration of IA questions 5 to 7. The consultation also
informed amendments to the draft legislation for consideration by Parliament. The
OIA was engaged throughout the policy development process, including receiving
informal drafts of the IA. At each step, the OIA noted that the IA was 'well
developed' for the relevant stage in the policy development process.
In assessing the impact of the proposed options, compliance costs to industry were
estimated for the purposes of this IA, using a Regulatory Burden Measurement
Framework that follows the guidelines provided by the OIA, and are considered to
have a relatively low regulatory impact on industry with significant public health
benefit.
The options outlined in this IA are summarised in Figure 1 below. Option 3 has been
identified as the preferred option which would deliver on the public health objectives
of:
• reducing uptake among people who do not smoke
• increasing cessation among people who smoke
• informing regulators of trends in marketing, use and compliance within the
tobacco control framework to contribute toward achieving the Australian
Government's targets in respect to tobacco control.
113
Figure 1: Detailed policy options outlined in the IA
114
ii
United Nations, 'Chapter IX, Health, WHO Framework Convention on Tobacco Control' (Web Page,
United Nations Treaty Collection, 21 May 2003) UNTC.
iii
R West, 'Tobacco Smoking: Health Impact, Prevalence, Correlates and Interventions' (2017)
Psychology and Health 32(8): 1018-1036. Available at: PMC (nih.gov) ; M Assunta, 'Global
Tobacco Industry Interference Index' (Global Centre for Good Governance in Tobacco Control,
2021). Available at: globaltobaccoindex.org.
iv
Australian Institute of Health and Welfare, 'National Drug Strategy Household Survey 2019' (Drug
Statistics series no. 32 2020) 8. Available at: National Drug Strategy Household Survey 2019
(aihw.gov.au).
v
Department of Health and Aged Care, 'National Prevention Health Strategy 2021-2030' (2021).
Available at: National Preventive Health Strategy 2021-2030 | Australian Government
Department of Health and Aged Care.
vi World Health Organization, 'WHO Framework Convention on Tobacco Control' (2003). Available at:
https://apps.who.int/iris/bitstream/handle/10665/42811/9241591013.pdf;jsessionid=5EDE341A29ADE9F8E
052C79F67A90C97?sequence=1.
vii The Hon Greg Hunt (Minister for Health), 'National Press Club address - Long Term National Health Plan
transcript' (2019). Available from: https://www.health.gov.au/ministers/the-hon-greg-hunt-
mp/media/national-press-club-address-long-term-national-health-plan.
viii
Legislation Act 2003 (Cth).
ix Department of Health, 'Review of Tobacco Control Legislation - Update' (2020). Available from: Consultation
Hub.
x
Department of Health, 'National Drug Strategy 2017-2026' (2017). Available at:
https://www.health.gov.au/sites/default/files/national-drug-strategy-2017-2026_1.pdf.
115