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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023
ADDENDUM TO THE 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
OUTLINE
This addendum to the explanatory memorandum to the Public Health (Tobacco and Other Products)
Bill 2023 provides further explanation of the provisions of the Bill.
This addendum responds to matters raised by the Senate Standing Committee for the Scrutiny of
Bills (Senate Committee), in Scrutiny Digest No. 14 of 2023, dated 15 November 2023. The additional
information on the reversal of the evidential burden and the legal burden should also be
incorporated into the Statement of Compatibility with Human Rights.
PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023
Statement of Compatibility with Human Rights
Right to a presumption of innocence
Page 27 - delete the paragraphs under the heading 'Onus of proof' and insert the following
paragraphs:
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 objects of the 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. Consistent with the objects of the Bill and the nature of the provisions, the
evidential and legal burden has been reversed at times. The evidential burden is reversed in
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 addition, the legal burden
of proof is reversed in a small number of provisions, specifically clauses 17, 19(9), 20(4), 42(9) and
43(4).
The reversal of the evidential burden of proof
The reverse evidential burden of proof provisions in Chapters 3 and 4 have been drafted consistent
with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Accordingly they relate to matters that are peculiar to the knowledge of the defendant and where it
would be significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter. In relation to permitted publications under clauses 19 and 42,
consideration has been given to the need to adopt a simplified and accessible drafting approach
such that some, but not all, matters for which there is a reverse evidential burden are peculiar to the
knowledge of the defendant. The provisions have been drafted with appropriate consideration given
to balancing the needs of effective law enforcement and the presumption of innocence.
The reversal of the legal burden of proof
The approach to both the reversal of the evidential burden, and the legal burden, recognises that
tobacco products are unlike any other legal consumer product. Tobacco use contributes to health
burden in Australia more than any other risk factor. Use of tobacco products causes people to die
earlier than they otherwise would and to endure poorer quality of life while they are alive. They
harm the health of people who smoke and people who do not, including infants and unborn
children. In 2018, tobacco use was estimated to kill almost 20,500 Australians.
Accordingly, in a small number of areas it has been considered appropriate to reverse the legal
burden of proof to support the effectiveness of the overarching regulatory approach adopted. This
reflects a balanced compromise between the needs of effective law enforcement and the
presumption of innocence.
The Guide to Framing Offences highlights that the reversal of the legal burden should be pursued
only with strong reasons and should be kept to a minimum. Offences in the Bill where the reversal of
legal burden has been applied have been kept to a minimum and applied only to one element of the
offence.
It will remain necessary for the prosecution to prove the remainder of the elements of each offence.
The reverse onus provisions are appropriate because they relate to elements which would be
extremely difficult for the prosecution to prove and it would likely be more straightforward for the
accused to prove a fact than for the prosecution to disprove it. The nature of the regulatory regime
in this area is such that its effectiveness will at times be dependent on the operation of rebuttable
presumptions. The matters are peculiar to the knowledge of the defendant and would be more
onerous for the prosecution to prove, but beyond that the reversal of the legal burden is in support
of the objects of the Bill and the effective administration of the regulatory regime.
The approach is necessary in consideration of the objects of the Bill and the need for the effective
administration of the regime, reasonable given the considerable harm that tobacco use gives rise to
and proportionate given that it is utilised in only a small number of areas and it remains the case
that the other elements of each offence will need to be proven by the prosecution. The reverse
burden offences and strict liability offences are compatible with the presumption of innocence
because they are reasonable, necessary and proportionate in pursuit of the Bill's legitimate
objectives.
The insertion of this material is a correction to the Statement.
ADDITIONAL NOTES ON CLAUSES
Page 72 - insert at the end of the notes on 'Onus of proof' under the heading 'Part 3.4- General
offences and civil penalty provisions- tobacco product requirements'
More detailed discussion of reversal of the evidential burden of proof in Chapter 3 offences
The provisions in Chapter 3 which reverse the evidential burden have been drafted in careful
consideration and taking a consistent approach to the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers (the Guide to Framing Offences). These provisions
adopt a similar approach of reversing the evidential burden of proof for certain categories of
defences as is applied under the Tobacco Plain Packaging Act 2011. In particular, where the
evidential burden was reversed consideration was given to the following circumstances:
o the matter is peculiarly within the knowledge of the defendant; and
o it would be significantly more difficult and costly for the prosecution to disprove than for the
defendant to establish the matter.
Each of the proposed provisions that reverses the evidential burden makes this clear on the face of
the provision in a legislative note. It is appropriate that the evidential burden for showing each
exception rests with the defendant. The exceptions represent a balanced compromise between the
needs of effective law enforcement and the presumption of innocence.
Further detail regarding how the relevant matters are peculiarly within the knowledge of the
defendant and more difficult for the prosecution to disprove than for the defendant to establish is
outlined below for the common exceptions which occur across clauses 93, 94, 95, 96, 99, 100, 103,
104, 107, 108, 109, 110, 113, 114, 117 and 118. Clause 120 is also specifically addressed below.
Explanation for common exceptions across Chapter 3
Where the defendant seeks to rely on the exception for sale, supply, possession or purchase of
cigars in non-compliant retail packaging for individual resale, it is peculiarly within the knowledge
of the defendant as to whether they had a 'reasonable belief' that the retailer intends to correctly
package each cigar individually for retail sale as a single cigar. It would be significantly more difficult
for the prosecution to adduce evidence as to the state of mind of the defendant and much more
efficient and less costly for the defendant to establish the relevant matters for the exception.
Where an individual purchases or is in possession of a tobacco product for personal use this
purpose will be peculiar to the knowledge of the defendant. It would be significantly more onerous
for the prosecution to adduce evidence on this point than it would be for the defendant to establish
this matter.
Where the defendant seeks to rely on the exception that the manufacturer has taken all reasonable
steps to ensure that retail packaging complies with tobacco product requirements it will be
peculiarly within the knowledge of the defendant what these reasonable steps were. Such steps will
be likely specific to manufacturing processes and it would be significantly more difficult for the
prosecution to adduce evidence as to the steps that were taken and the reasonableness of those
steps and much more efficient and less costly for the defendant to establish the relevant matters for
the exception.
Where the defendant seeks to rely on the exception for possession in the course of repackaging or
intention to repackage the products into compliant packaging this will be a defence. It will be
peculiar to their knowledge what their actions or intentions were while in possession of the
products. The defendant's processes for repackaging tobacco products would also be peculiar to the
knowledge of the defendant. There may be consideration of any steps they had individually taken to
do this and reference to the timing of actions taken. The facts and matters going towards this
exception would be readily available to the defendant but would not be easily accessible to the
prosecution. It would be significantly more onerous for the prosecution to adduce evidence on this
point than it would be for the defendant to establish this matter.
Individuals who purchase or are in possession of non-compliant products in the course of
compliance and enforcement activities, or exercising powers under or in relation to, this Bill, would
readily be able to produce the information indicating that they were in that role engaging in the
activity for that purpose. While it is the case that the prosecution could ascertain the status of a
person, this information is intrinsically associated with the person in their role and accordingly they
could readily provide, for example, evidence they are an authorised officer. Along with establishing
that they were in the relevant role they would also be able to provide evidence that in relation to
the particular conduct they were acting within that role. It would be significantly more difficult for
the prosecution to do this than for the defendant to readily discount it.
In regard to the export exception in clause 120, a number of the facts and matters relating to the
satisfaction of the export conditions are likely to be peculiar to the knowledge of the defendant. For
example, the export condition in paragraph 3(f) which relates to contracts or arrangements entered
into, will potentially reflect confidential international business dealings that the prosecution could
not readily gain evidence of. This may occur if an Australian based company holds a contract to
supply tobacco products to a foreign jurisdiction that does not have the same packaging
requirements. It is more appropriate that the defendant provide this evidence which they would
have easy access to. It would be significantly more difficult for the prosecution to adduce this than
for the defendant to establish the matter. Therefore, it is an appropriate compromise between the
needs of effective law enforcement and the presumption of innocence.
This additional material is included in response to the Senate Committee request for additional
material for the reasoning for reversing the evidential burden.
Page 47- insert under the heading of 'Division 5- Tobacco advertisements- permitted publications'-
after first sentence
Reversal of the evidential burden for permitted publications- relevant to clause 19 (tobacco
products) and clause 42 (e-cigarettes)
The approach adopted for subclauses 19(3) and 42(3), of treating these as offence-specific defences
which reverse the evidential burden, continues the approach for permitted publications that applies
under the Tobacco Advertising Prohibition Act 1992. However, a more modern drafting approach is
adopted such that the provisions are differently presented and the appropriateness of ongoing
specific defences has been considered and reflected in the Bill. The drafting reflects a shift in the
approach regarding what constitutes 'advertising' and 'publishing' to provide additional clarity. This
results in more areas being treated as permitted publication offence-specific defences rather than
outside of the definition of advertising or publishing. In relation to permitted publications under
clauses 19 and 42, consideration has been given to the need to adopt a simplified and accessible
drafting approach such that some, but not all, matters for which there is a reverse evidential burden
are peculiar to the knowledge of the defendant. The provisions have been drafted with appropriate
consideration given to balancing the needs of effective law enforcement and the presumption of
innocence.
The exception for permitted publications reflects that the matter, or relevant facts and evidence,
may be peculiar to the knowledge of the defendant. In addition, as a matter of practicality, it would
be readily accessible for the defendant to provide evidence in relation to an applicable permitted
publication exception. For example, in relation to the permitted publications exception for trade
communications it would be peculiar to a defendant's knowledge who they had provided, and
intended to provide, such communications to. They could provide evidence of mailing receipts/sent
items/address lists (either electronic or physical) to show that trade communications were only sent
to entities involved in tobacco distribution and not to members of the public.
It would be overly onerous and costly for the prosecution to consider the possibility of each
'permitted publication'. The streamlined provisions will likely improve access to the law rather than
treating the different permitted publications in varying ways.
This additional material is included in response to the Senate Committee request for additional
explanation as to the reversal of the evidential burden for permitted publications.
Page 72- insert at the end of the notes on 'Onus of proof' under the heading 'Part 3.4- General
offences and civil penalty provisions- tobacco product requirements' after notes inserted on
evidential burden above
Additional detail regarding the reversal of the legal burden of proof
The objects of the 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 approach recognises that tobacco products are unlike any other legal consumer product.
Tobacco use contributes to health burden in Australia more than any other risk factor. Use of
tobacco products causes people to die earlier than they otherwise would and to endure poorer
quality of life while they are alive. They harm the health of people who smoke and people who do
not (including infants and unborn children). In 2018, tobacco use was estimated to kill almost 20,500
Australians.
Accordingly, in a small number of areas it has been considered appropriate to reverse the legal
burden of proof to support the effectiveness of the overarching regulatory approach adopted. The
onus of proof is reversed in clauses 17, 19(9), 20(4), 42(9) and 43(4). This reflects a balanced
compromise between the needs of effective law enforcement and the presumption of innocence.
The Guide to Framing Offences highlights that the reversal of the legal burden should be pursued
only with strong reasons and should be kept to a minimum. Offences in the Bill where the reversal of
legal burden has been applied have been kept to a minimum and applied only to one element of the
offence. It will remain necessary for the prosecution to prove the remainder of the elements of each
offence.
The reverse onus provisions are appropriate because they relate to elements which would be
extremely difficult for the prosecution to prove and it would likely be more straightforward for the
accused to prove a fact than for the prosecution to disprove it. The nature of the regulatory regime
in this area is such that its effectiveness will at times be dependent on the operation of rebuttable
presumptions. The matters are peculiar to the knowledge of the defendant and would be more
onerous for the prosecution to prove, but beyond that the reversal of the legal burden is in support
of the objects of the Bill and the effective administration of the regulatory regime.
This additional material is included in response to the Senate Committee request for additional
information as to why the legal rather than the evidential burden has been reversed for these
provisions.
Page 40 - insert at end of notes explaining clause 17
Clause 17 - Tobacco products--rebuttable presumption of offer for retail sale
Additional detail regarding the reversal of the onus of proof
The defendant bears a legal burden in clause 17 to prove that tobacco products are not intended to
be offered for retail sale. However, the circumstances in which the reverse burden of proof applies
are narrow. Unless the contrary is proved, a tobacco product is presumed to be offered for retail
sale if an amount of the tobacco product is on physical premises 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
prescribed by regulations made for the purposes of this paragraph.
The offences in relation to tobacco product requirements are directed to ensuring that tobacco
products that do not meet the requirements such as those for plain packaging, are not sold to the
consumer. The rebuttable presumption facilitates prosecutions in circumstances where it is
reasonable to presume that the tobacco products are for retail sale i.e. they are in a shop or
wholesale facility that sells or supplies tobacco. The presumption is limited to only one element of
the offence and it would continue to be the case that the offence as a whole would need to be
proven by the prosecution. In addition, the prescribed amount of personal use (to be set in the
regulations) will make it even less feasible that the tobacco products are not for retail sale. This is
because it is unlikely that the tobacco products will be for personal use rather than retail sale in
circumstances where the amount of the product exceeds the prescribed amount.
This is a necessary, proportionate and reasonable approach given the objectives of the Bill and the
potential ability for the defendant to otherwise raise doubt by asserting merely that the product is
not for retail sale in circumstances where this would seem highly improbable. It may be that
prosecutions would be erroneously held up if it was necessary to establish that there was an
intention to sell the goods for retail purposes when it is a reasonable inference that is the intended
purpose.
In the event that the defendant needs to discharge the burden because the product is not for retail
sale, they would need to prove this on the balance of probabilities. For example, if a person who
smokes cigarettes is operating a retail store, they could claim that the detected product is for their
own personal use where the amount exceeds the prescribed amount if they could provide evidence
that they were a very heavy smoker.
This additional material is included in response to the Senate Committee's request for additional
information to be included for the reversal of the legal burden.
Page 42 - insert at end of notes on clause 19 noting relevant to subclause 19(9) and also 42(9)
Subclauses 19(9) and 42(9)
Subclauses 19(9) and 42(9) impose the legal burden on the individual as a proportionate and
reasonable approach to achieve practicality for the prosecution. It means that an individual has a
right of publication open to them but they will have the burden to prove that that publication is
'individual publication'. This approach is adopted in consideration of the difficulty that would be
involved in proving an individual has received a direct or indirect benefit for publishing a tobacco
advertisement.
As a matter of effective administration of this provision it is more appropriate that the burden be on
the individual to show that no direct or indirect benefit was received by the individual. It would be
more open to the defendant to provide that the defence of individual publication was substantiated
and this is therefore considered a reasonable and proportionate approach.
This additional material is included in response to the Senate Committee's request for additional
information to be included for the reversal of the legal burden.
Page 43- insert at end of notes explaining clause 20
Additional detail regarding the rebuttable presumption in subclauses 20(4) and 43(4)
The rebuttable presumptions in subclauses 20(4) and 43(4) are considered a reasonable and
proportionate approach in recognition of the objects of the Bill and the need to prohibit tobacco
advertisements and e-cigarette advertisements as an important public health measure. The
rebuttable presumption applies only to this one element of the offence and the prosecution would
still need to prove the offence as a whole. The presumption facilitates prosecutions in circumstances
where it would otherwise be overly technical for the prosecution to prove that an item, such as a
trademark, was promoting tobacco or e-cigarettes. It is considered an appropriate balance between
enforcement to uphold the regulatory scheme and the presumption of innocence.
The intention to deter such tobacco and e-cigarette advertising further justifies the approach
adopted. It would be unproductive for the prosecution to be required to establish that such things as
a logo which is evocative of a trade mark associated with regulated tobacco items or e-cigarette
products is promotional and therefore tobacco advertising or e-cigarette advertising. It would also
be contrary to the wider premises adopted in the legislation as to what constitutes product
promotion.
Subclauses 20(4)(c) and 43(4)(c) are included with the intention of addressing attempts to subvert
advertising prohibitions in circumstances such as those described. These attempts have been made
by entities utilising such things as logos which look like, and are therefore recognisable as, tobacco
product trade marks but depart from the specific trade mark.
An example of the types of material expected to be covered by subclauses 20(4)(c) and 43(4)(c),
which is one that has occurred in practice, is that of a race car at a racing event displaying a logo or
design insignia which is evocative of a trade mark that is or has been associated with regulated
tobacco items. Despite no longer being able to display the Marlboro logo on Ferrari cars, Philip
Morris's sponsorship of Ferrari was seen visually on the Ferraris at the 2018 Japanese Grand Prix,
through the use of the cigarette company's "Mission Winnow" branding. This branding has been
alleged to be being used as an attempt to flout laws and rules banning tobacco advertising by
utilising logos that are evocative of tobacco trade marks, in this case a logo that is similar to the
widely recognisable logo of Marlboro.
In Australia, the Mission Winnow logos were removed by Ferrari for the 2019 Australian Grand Prix
after an investigation was launched. This investigation was ultimately effective under the Victorian
legislation but highlighted an area that could be more clearly addressed by Commonwealth
legislation. The subclauses provide that a logo that is evocative of a trade mark associated with a
regulated tobacco item, or has been such a trade mark, should not be able to be utilised to subvert
prohibitions on tobacco promotion and advertising. The effect of the presumption is that the logo on
the car in the example outlined above would be taken to be tobacco advertising or e-cigarette
advertising, because it is an item which promotes tobacco or e-cigarettes by being evocative of a
tobacco or e-cigarette trade mark, without the prosecution needing to prove it to be such.
It is likely that the approach to rebut the presumption would be equivalent to how evidence is
adduced in an intellectual property or copyright case, such that there may need to be evidence from
focus groups or consumers as to the perceived 'promotional' nature of the item. One such example
could include a product which is intended as satire that uses a trade mark. A focus group survey
could support the view that the use of the trade mark on that product was not having the effect of
promoting tobacco or e-cigarettes and rather that it might be being utilised with the opposite effect.
Alternatively, there may be a scenario where a design or insignia appearing on goods resembles
tobacco or e-cigarette logos or trade marks at face value. A person might seek to rebut the
presumption that the logo or trade mark is promoting a tobacco product by providing information
about the development of the design or insignia used.
The requirement for a defendant to need to rebut the presumption is balanced against the
consideration that it would be unproductive for the prosecution to need to establish that such things
as trade marks that are clearly evocative of tobacco insignia are promoting tobacco. This kind of
material is generally recognised as advertising for the purposes of the Bill as these are the kinds of
items that are already restricted or prohibited from being included on tobacco packaging. The
rebuttable presumption reflects the inherently promotional nature of these items and supports the
objectives of the regulatory scheme by providing that the prosecution need not prove this aspect of
the offence. Accordingly, the inclusion of the presumption appropriately balances the right to the
presumption of innocence and the effective administration of the regulatory scheme.
This additional material is included in response to the Senate Committee request for additional
material as to the operation of these provisions, including examples of the type of material expected
to be covered by 20(4)(c) and 43(4)(c) and an explanation of how the presumption could be
rebutted.
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