Commonwealth Consolidated Acts Commonwealth Consolidated ActsOffences
(1) A person commits an offence if:
(a) the person is a retailer in relation to retail premises in Australia; and
(b) the person possesses a quantity of a kind of vaping goods at the retail premises; and
(c) the quantity is less than the commercial quantity of that kind of vaping goods.
Penalty: Imprisonment for 12 months or 500 penalty units, or both.
Note: For the liability of an executive officer of a body corporate, see sections 54B and 54BA.
(2) Absolute liability applies to paragraph (1)(b).
(3) A person commits an offence of strict liability if:
(a) the person is a retailer in relation to retail premises in Australia; and
(b) the person possesses a quantity of a kind of vaping goods at the retail premises; and
(c) the quantity is less than the commercial quantity of that kind of vaping goods.
Civil penalty provision
(4) A person contravenes this subsection if:
(a) the person is a retailer in relation to retail premises in Australia; and
(b) the person possesses a quantity of a kind of vaping goods at the retail premises; and
(c) the quantity is less than the commercial quantity of that kind of vaping goods.
Maximum civil penalty:
(a) for an individual--1,000 penalty units; and
(b) for a body corporate--10,000 penalty units.
(5) A person who contravenes subsection (4) in relation to a kind of vaping goods commits a separate contravention of that subsection in respect of each unit of the quantity of vaping goods of that kind possessed by the person at the retail premises in Australia.
Note: For unit of vaping goods, see subsection 3(1).
(6) Subsections (1) to (5) do not apply if subsections (7) and (8) apply in relation to the possession of the vaping goods by the person.
Note: The person bears an evidential burden in relation to the matters in subsections (7) and (8): see subsection 13.3(3) of the Criminal Code and section 41QE of this Act.
(7) This subsection applies in relation to the possession of the vaping goods by the person if:
(a) the vaping goods are therapeutic goods that are entered on the Register; or
(b) both of the following apply:
(i) the vaping goods are therapeutic goods that are exempt goods under regulations made for the purposes of subsection 18(1) or an exempt device under regulations made for the purposes of subsection 41HA(1), and the sponsor has given the Secretary a notice in compliance with the exemption;
(ii) the vaping goods are not the subject of a determination by the Secretary, published on the Department's website, that the supply of the goods be stopped or should cease because the Secretary is satisfied that the supply of the goods compromises public health and safety or the goods do not conform with a standard applicable to the goods; or
(c) the vaping goods are covered by a determination made by the Minister under section 41R.
(8) This subsection applies in relation to the possession of the vaping goods by the person if:
(a) both of the following apply:
(i) the person is a pharmacist, medical practitioner or nurse practitioner who is the holder of a licence, or is otherwise authorised, to supply one or more substances included in Schedule 3 to the current Poisons Standard under a law of the State or Territory in which the person possesses the goods;
(ii) the possession of the goods is in accordance with the licence or authority; or
(b) both of the following apply:
(i) the Secretary has given the person a consent under subsection 41RC(1) to possess the vaping goods;
(ii) the possession is in accordance with the consent; or
(c) in the case of vaping goods that are covered by a determination made by the Minister under section 41R:
(i) the person is specified in the determination, or is included in a class of persons that is specified in the determination, in relation to those goods; and
(ii) the possession is in accordance with the determination.
Exception--possession for personal use
(9) Subsections (1) to (5) do not apply in relation to the possession of a quantity of a kind of vaping goods by the person if:
(a) the vaping goods are for use by the person personally; and
(b) the quantity is not more than the permitted quantity of that kind of vaping goods.
Note: The person bears an evidential burden in relation to the matters in subsection (9): see subsection 13.3(3) of the Criminal Code and section 41QE of this Act.
(10) In this section:
"permitted quantity" of a kind of vaping goods means the quantity of that kind of vaping goods prescribed by the regulations.
"retailer in relation to retail premises in Australia" means any of the following:
(a) an owner, lessee or occupier of retail premises in Australia;
(b) a person conducting a business or undertaking at, or in connection or association with, retail premises in Australia;
(c) a director, officer or agent of a person referred to in paragraph (a) or (b);
(d) a person performing work in any capacity (including, but not limited to, an employee or a contractor) for, or on behalf of, a person referred to in paragraph (a), (b) or (c) at, or in connection or association with, retail premises in Australia.
"retail premises" means premises:
(a) from which goods or services are available for supply, or are supplied, to a consumer; or
(b) that are used in connection with the supply of goods or services to a consumer;
(whether or not the premises are used wholly or predominantly for that purpose).
Note: For premises , see subsection 3(1).