Commonwealth Consolidated Acts

PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) ACT 2023 - SECT 19

Publishing a tobacco advertisement

  (1)   A person contravenes this subsection if:

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

  (b)   the material is a tobacco advertisement.

Publishing material intended etc. to be a tobacco advertisement

  (2)   A person contravenes this subsection if:

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

  (b)   the material is not a tobacco advertisement, but:

  (i)   the person intends the material to be a tobacco advertisement; or

  (ii)   the person is reckless as to whether the material is a tobacco advertisement.

Note 1:   The physical elements of offences against subsections   (4) and (7) are set out in subsections   (1) and (2) (see section   165).

Note 2:   For tobacco advertisement exceptions, see Division   3.

Exception for permitted publications

  (3)   Subsections   (1) and (2) do not apply to the publication of a tobacco advertisement if the publication is permitted by a provision in Division   5.

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

Fault - based offence

  (4)   A person commits an offence if the person contravenes subsection   (1) or (2).

Penalty:

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

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

  (5)   The fault element for paragraph   (1)(b) is recklessness.

Geographical application

  (6)   Section   15.2 of the Criminal Code (extended geographical jurisdiction--category B) applies to an offence against subsection   (4).

Strict liability offence

  (7)   A person commits an offence of strict liability if the person contravenes subsection   (1) or (2).

Penalty:

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

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

Civil penalty provision

  (8)   A person is liable to a civil penalty if the person contravenes subsection   (1) or (2).

Civil penalty:

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

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

Defence for individual publication

  (9)   It is a defence in a prosecution for an offence, or in proceedings for a civil penalty, for a contravention of subsection   (1) or (2) if the defendant proves that:

  (a)   the defendant published the material:

  (i)   as an individual; and

  (ii)   on the defendant's own initiative; and

  (b)   the publication was not in the course of, or in any way associated with, the manufacture, importation, distribution or sale of regulated tobacco items by any person; and

  (c)   the defendant did not receive any direct or indirect benefit (whether financial or not) from any person for publishing the material.

Note:   A defendant bears a legal burden in relation to the matters in this subsection in a prosecution for an offence (see section   13.4 of the Criminal Code ). The same applies in proceedings for a civil penalty.