(2) Before making the application, the Secretary must: (a) take reasonable steps to discover who has an interest in the retention of the thing; and. The retail packaging of tobacco products must not include any features designed to change the packaging after retail sale, including (without limitation) the following: (b) inks or embellishments designed to appear gradually over time; (c) inks that appear fluorescent in certain light; (d) panels designed to be scratched or rubbed to reveal an image or text; Division 2—Requirements for appearance of tobacco products, 26 Requirements for appearance of tobacco products. imitation cork tip of a cigarette means the part of the paper over the filter tip of the cigarette that is printed brown to resemble cork. any outer surface of a cigarette pack or cigarette carton (other than a front outer surface). (b) the product does not comply with a tobacco product requirement. (4) The equipment may be secured until the earlier of the following happens: (b) the equipment has been operated by the expert. Amending laws are annotated in the legislation history and amendment history. For more information about any editorial changes made in this compilation, see the endnotes. The person can choose to pay an amount as an alternative to proceedings being brought against the person in relation to the alleged contravention. , 2011 1 1 A Bill for an Act to discourage the use of tobacco 2 products, and for related purposes 3 The Parliament of Australia enacts: 4 Chapter 1—Preliminary 5 Part 1—Preliminary 6 7 ^1 Short title 8 This Act may be cited as the Tobacco Plain Packaging Act 2011. Note: Section 98 (which provides that a person’s state of mind does not need to be proven in relation to a civil penalty provision) does not apply to this subsection. (e) that the person may be prosecuted in a court for the alleged contravention, or proceedings for a civil penalty order may be brought in relation to the alleged contravention. Note: See section 50 in relation to the physical elements of the offence. A cigar or cigarette is an example of a product that contains tobacco. (2) A cigarette pack or cigarette carton must comply with the following requirements: (a) the pack or carton must be rigid and made of cardboard, and only cardboard (subject to paragraphs (1)(b) and (3)(d)); (i) each outer surface of the pack or carton must be rectangular; and. (1) The Secretary may apply to the Federal Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. means a person appointed under section 81 as an authorised officer. the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011; and any related measures adopted by Australia, including measures that implement, complement or add to these laws and regulations, as well as any measures that amend or replace these laws and regulations. (5) Subsections (1) to (4) also apply in relation to regulations made under the Trade Marks Act 1995 that: (a) apply provisions of the Trade Marks Act 1995 that are affected by this section, including where the regulations apply those provisions in modified form; and. (a) the person is given a notice under subsection (2); and. (a) an authorised officer does not comply with subsection (1) because of subsection (2); and. Note: The text of the Convention is set out in Australian Treaty Series 2005 No. The following endnotes are included in every compilation: The abbreviation key sets out abbreviations that may be used in the endnotes. (6) A person is liable to a civil penalty if the person contravenes subsection (1). 41 Purchasing tobacco products from a constitutional corporation in non‑compliant retail packaging, (a) the person purchases a tobacco product from another person; and, (b) the other person is a constitutional corporation; and, (c) at the time the product is purchased, the product has been packaged for retail sale; and. Court. (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (1) A pecuniary penalty is a debt payable to the Commonwealth. Note 2: See subsection 4(2) for an extended meaning of offer. 1) (Select Legislative Instrument 2012, No. (c) may also contravene a civil penalty provision. 7 References to contraventions of civil penalty provisions, (i) a contravention of a civil penalty provision; or, (ii) a person contravening a civil penalty provision; and. (b) in the centre of the space remaining on the front outer surface beneath the health warning. Note: Loose tobacco for roll‑your‑own cigarettes is an example of processed tobacco. (d) the authorised officer believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction. (b) in the centre of the outer surface of the pack or carton. (2) Without limiting subsection (1), the regulations may, for the purposes of section 46 of the Trans‑Tasman Mutual Recognition Act 1997, declare that this Act is exempt from the operation of that Act. display brand names in certain ways. 29 Effect on the Designs Act 2003 of failure to make products as a result of this Act. (2) The authorised officer must, as soon as practicable: (i) if the warrant was issued under section 75 (ordinary warrants)—make a copy of the warrant available to the occupier or other person (which need not include the signature of the issuing officer who issued it); (ii) if the warrant was signed under section 76 (telephone warrants)—make a copy of the form of warrant completed under subsection 76(6) available to the occupier or other person; and. (3) The authorised officer must comply with such a request as soon as practicable after the seizure. • An authorised officer who enters premises may exercise search powers. 29); The Trade Marks Amendment (Tobacco Plain Packaging) Act 2011. The Bill makes it … Note 1: See also the definition of container. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). Note: See section 7 for references to contraventions of civil penalty provisions. (3) The Minister must cause the report to be included in the annual report of the Department for that financial year. The search powers include seizing a thing from premises if: (a) entry to the premises is under a warrant; and, (b) the authorised officer finds the thing in the course of searching for the kind of evidential material specified in the warrant; and, (c) the authorised officer believes on reasonable grounds that the thing is other evidential material; and. Note: Section 92 of the Constitution requires trade among the States to be absolutely free. (b) the civil penalty provision is in a section in Chapter 3; the reference includes a reference to a contravention of, or a person contravening, subsection (1) of that section. (2) Subsection (1) of this section does not apply to section 91 (contravening a civil penalty provision is not an offence). (f) any onsert that is affixed or otherwise attached to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of this definition). (iii) the relevant person does not offer the product for retail sale; Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code). 28 Effect on the Trade Marks Act 1995 of non‑use of trade mark as a result of this Act. Note: For the definition of tobacco advertising and promotion, see section 4. (a) the person manufactures any of the following retail packaging of tobacco products: (ii) a container for retail sale that contains or will contain smaller containers; (iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale; (iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and, (b) a tobacco product is packaged for retail sale in the retail packaging by another person; and. This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication. (1) Subsection (1) of any of sections 31 to 48 (other than section 36 or 46) does not apply if: (i) engages in the conduct to which that subsection applies in relation to a tobacco product; or, (ii) manufactures retail packaging, and a tobacco product is packaged for retail sale in the retail packaging by another person; and, (b) a contract or arrangement has been entered into, or an understanding has been arrived at, for the tobacco product to be exported (whether or not the relevant person is a party to that contract, arrangement or understanding); and, (c) the relevant person engages in that conduct, or manufactures that retail packaging, in the course of, or for the purposes of, the tobacco product being exported; and. to be given to occupier. (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. Note: See also the definition of container. (1) A form of warrant duly completed under subsection 76(6) is authority for the same powers as are authorised by the warrant signed by the issuing officer under subsection 76(4). (ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. Authorised applicant and authorised person. Civil penalty: 2,000 penalty units. (1) A person to whom an infringement notice has been given may apply to the Secretary for an extension of the period referred to in paragraph 101(h). (c) at the time of the supply, the person does not have a contract with the purchaser that prohibits the purchaser from supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements. 34 Manufacturing non‑compliant retail packaging of tobacco products. (4) Any relevant legislative requirement (other than the health warnings) must comply with any requirements prescribed by the regulations. (7) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1). authorised officer means a person appointed under section 81 as an authorised officer. (i) discouraging people from taking up smoking, or using tobacco products; and, (ii) encouraging people to give up smoking, and to stop using tobacco products; and, (iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and, (iv) reducing people’s exposure to smoke from tobacco products; and. 7 References to contraventions of civil penalty provisions, (i) a contravention of a civil penalty provision; or, (ii) a person contravening a civil penalty provision; and. (3) For the purposes of subsection (2), strict liability applies to: (a) the element of the offence that the tobacco product is packaged for retail sale; and, 43 Manufacturing non‑compliant retail packaging of tobacco products under a contract with a constitutional corporation. (4) A person is liable to a civil penalty if the person contravenes subsection (1). (b) the person fails to comply with the notice. 148 of 2011 as amended, taking into account amendments up to Tobacco Plain Packaging Amendment Act 2018. Part 2—General offences and civil penalty provisions for non‑compliant retail packaging and tobacco products, Division 1—Non‑compliant retail packaging of tobacco products, 31 Selling or supplying tobacco products in non‑compliant retail packaging. (2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place. (a) the person is subject to subsection (1); and. (2) No mark may appear anywhere on a tobacco product, other than as permitted by the regulations. (3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time. If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. (e) give brief details of the alleged contravention, including: (i) the provision that was allegedly contravened; and, (ii) the maximum penalty that a court could impose for the contravention; and, (iii) the time (if known) and day of, and the place of, the alleged contravention; and. • Part 2 of this Chapter contains miscellaneous provisions, such as the Secretary’s delegation power and reporting to Parliament on contraventions of this Act. It includes powers of entry, search and seizure. (1) The retail packaging of tobacco products must comply with the following requirements: (a) the outer surfaces and inner surfaces of the packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments, other than as permitted by the regulations; (b) any glues or other adhesives used in manufacturing the packaging must be transparent and not coloured. (1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are commenced or have already been commenced against the person for an offence; and. (5) An issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if: (a) an application is made under subsection (3); and, (b) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and. Penalty for contravention of this subsection: 30 penalty units. of tobacco products that do not comply with any requirements specified in the regulations (see Chapter 3). (b) provide in similar terms to provisions of the Trade Marks Act 1995 that are affected by this section. Objects of this Act 4. (1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island. Passive smoking and tobacco use leads to serious illness in 1525 people and tobacco account for more than one-fifth of all deaths in the country. 52 Authorised officer may enter premises by consent or under a warrant. (4) For the purposes of subsection (3), strict liability applies to paragraphs (1)(b) and (c). (1) To further the objects of this Act, the regulations may prescribe additional requirements in relation to: Note 1: The objects of this Act are set out in section 3. The occupier or other person is entitled to be heard in relation to that application. This Act may be cited as the Tobacco Plain Packaging Act 2011. The following is a simplified outline of this Act: • This Act regulates the retail packaging and appearance of tobacco products in order to: (b) give effect to certain obligations in the Convention on Tobacco Control. Note: For the requirements for wrappers, inserts and onserts, see sections 22 and 23. Secretary means the Secretary of the Department. (3) A person commits an offence if the person contravenes subsection (1). means the name used to distinguish that kind of tobacco product from other tobacco products that are supplied under the same brand, business or company name, by reference to one or more of the following: (c) the person covers the retail packaging of the tobacco product (within the meaning of paragraph (a) or (b) of the definition of, (e) the person places an insert inside the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of, (f) the person affixes or otherwise attaches an onsert to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of, Note 2: Other grammatical forms of the word, Rules relating to surfaces of cigarette packs and cigarette cartons, References to contraventions of civil penalty provisions, Inconsistency with other Commonwealth legislation. The effect of uncommenced amendments is not shown in the text of the compiled law. • Part 4 of this Chapter creates an exception to some of the offences and civil penalty provisions in this Chapter for non‑compliant tobacco products that are for export. • A civil penalty order may be sought from the Federal Court of Australia for the contravention of a civil penalty provision. 6 Rules relating to surfaces of cigarette packs and cigarette cartons. container includes (without limitation) any pack, carton, box, tin, packet, bag, pouch, tube or other container. The endnotes provide information about this compilation and the compiled law. Part 3—Power to require persons to give information, produce documents or answer questions, 80 Power to require persons to give information, produce documents or answer questions. (b) in the centre of the space remaining on the front outer surface beneath the health warning. A cigar or cigarette is an example of a product that contains tobacco. Note 2: Offences and civil penalties apply to the supply, purchase and manufacture etc. In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). Note: This table relates only to the provisions of this Act as originally enacted. (3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines. the front outer surface of a cigarette carton, (a) in the same orientation as the health warning; and. Offence for failure to comply when entry under warrant, (a) the person is subject to a requirement under subsection (2); and. • Offences and civil penalties apply if tobacco products are supplied, purchased or manufactured and either the retail packaging, or the products themselves, do not comply with the requirements. (d) whether the person has previously been found by a court in proceedings under one or more of the following to have engaged in any similar conduct: (ii) the Crimes Act 1914 or the Criminal Code in relation to this Act. (6) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the offences mentioned in subsection (1), extends to every external Territory. imitation cork tip of a cigarette means the part of the paper over the filter tip of the cigarette that is printed brown to resemble cork. (b) to give effect to certain obligations that Australia has as a party to the Convention on Tobacco Control. 01 Dec 2011. (1) This Act does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms. • This Act does not apply to the extent that its operation would infringe certain constitutional protections (such as by acquiring property otherwise than on just terms). of a cigarette carton has a meaning affected by subsection 6(2). (2) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person that is a constitutional corporation. Note: See subsections (2) and (3) for exceptions to this rule. 56 Persons assisting authorised officers, Authorised officers may be assisted by other persons. Full details of any changes can be obtained from the Office of Parliamentary Counsel. (1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is: (b) a civil penalty provision of this Act; or. Chapter 2—Requirements for plain packaging and appearance of tobacco products. (4) An authorised officer may require answers provided under paragraph (2)(c) to be verified by, or given on, oath or affirmation and either orally or in writing. (c) must do so in accordance with a direction given to the person assisting by the authorised officer. 20 Prohibition on trade marks and marks generally appearing on retail packaging. Division 5—General provisions relating to seizure, 69 Copies of seized things to be provided. COMMENTS: The Tobacco Plain Packaging Act 2011 requires plain packaging of tobacco products. In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). (2) A person who prepares a report under subsection (1) must give a copy to the Minister. (3) An authorised officer must carry the identity card at all times when exercising powers and performing functions and duties as an authorised officer. (3) Before applying for the warrant, the authorised officer must prepare an information of the kind mentioned in subsection 75(2) in relation to the premises that sets out the grounds on which the warrant is sought. a tobacco product for retail sale has the meaning given by section 5. • The retail packaging and appearance of tobacco products must comply with the requirements of this Act. • Division 1 of Part 2 sets out requirements for: (a) the physical features of retail packaging; and, (b) the colour and finish of retail packaging; and, (c) marks on retail packaging (including a prohibition on trade marks generally appearing on retail packaging); and. (3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (c). (4) Any relevant legislative requirement (other than the health warnings) must comply with any requirements prescribed by the regulations. • Civil penalty orders may be sought under Part 2 of this Chapter from the Federal Court in relation to contraventions of civil penalty provisions. (2) To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act 1995, this Act does not have the effect that the use of a trade mark in relation to tobacco products would be contrary to law. (2) The Secretary must make the application within 6 years of the alleged contravention. • Part 2 also contains some rules of general application in relation to civil penalty provisions. Note: The regulations might require the brand, business, company or variant name, or a relevant legislative requirement, to be a particular colour. (3) However, the issuing officer must not issue the warrant unless the authorised officer or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought. This Act extends to all the external Territories. • It is up to the Commonwealth to decide whether to prosecute a person for one of the offences or bring proceedings in relation to the contravention of the civil penalty provision. cigarette pack means any container for retail sale in which cigarettes are directly placed. (4) The issuing officer may complete and sign the same warrant that would have been issued under section 75 if the issuing officer is satisfied that there are reasonable grounds for doing so: (a) after considering the terms of the information; and. 35 Manufacturing tobacco products that are packaged in non‑compliant retail packaging, (a) the person (the manufacturer) manufactures a tobacco product; and, (b) the manufacturer enters into a contract or arrangement, or arrives at an understanding, for another person to package the tobacco product for retail sale; and, (c) the tobacco product is packaged for retail sale by the other person; and. (c) the retail packaging does not comply with a tobacco product requirement. (b) the fact that the equipment may be secured for up to 24 hours. (See also DS435, DS441, DS458 and DS467) On 13 March 2012, Ukraine requested consultations with Australia concerning certain Australian laws and regulations that impose trademark restrictions and other plain packaging requirements on tobacco products and packaging. (1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section. • This Act relies on the external affairs power of the Constitution by implementing certain obligations in the Convention on Tobacco Control. (b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention. any outer surface of a cigarette pack or cigarette carton, (a) horizontally and immediately below the brand, business or company name; and. (f) to revoke the registration of the trade mark. That Division also sets out the relationship between this Act, the Trade Marks Act 1995 and the Designs Act 2003. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. TABLE OF PROVISIONS Long Title CHAPTER 1--Preliminary PART 1--PRELIMINARY 1. (d) at the time of the supply, the person does not have a contract with the purchaser that prohibits the purchaser from supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements. Requirements for brand, business, company or variant names, the front outer surface of a cigarette pack, (a) horizontally below, and in the same orientation as, the health warning; and. 28 effect on the tobacco products in relation to the person packages a tobacco product for sale even the. Be extended more than once may extend the period specified must not the. Admissible in criminal proceedings. ) information is sworn or affirmed ) insufficient care was exercised by the can. 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