Commonwealth Consolidated Acts

PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) ACT 2023 - SECT 128

  (1)   A person contravenes this subsection if:

  (a)   the person possesses a tobacco product; and

  (b)   at the time of possession, the tobacco product is permanently banned under this Act; and

  (c)   any of the following apply:

  (i)   the person is a constitutional corporation;

  (ii)   the person is a body corporate that is incorporated in a Territory;

  (iii)   the person possesses the tobacco product in or for the purposes of constitutional trade or commerce;

  (iv)   the person possesses the tobacco product in a Territory.

Note:   The physical elements of offences against subsections   (4) and (6) are set out in this subsection   (see section   165).

Exception--possession for personal use

  (2)   Subsection   (1) does not apply if:

  (a)   the person who possesses the tobacco product is an individual; and

  (b)   the possession of the tobacco product is for personal use by the individual; and

  (c)   the tobacco product was imported in compliance with another law of the Commonwealth.

Exception--sale or supply by way of export

  (3)   Subsection   (1) does not apply if:

  (a)   the possession of the tobacco product is for the purpose of:

  (i)   the sale or supply of; or

  (ii)   an offer to sell or supply;

    the tobacco product by way of export; and

  (b)   the sale or supply is not, or would not be, a retail sale.

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

Fault - based offence

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

Penalty:

  (a)   for an individual--2,000 penalty units; and

  (b)   for a body corporate--20,000 penalty units.

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

Strict liability offence

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

Penalty:

  (a)   for an individual--60 penalty units; and

  (b)   for a body corporate--600 penalty units.

Civil penalty provision

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

Civil penalty:

  (a)   for an individual--2,000 penalty units; and

  (b)   for a body corporate--20,000 penalty units.