113Possessing non‑compliant retail packaging of tobacco products obtained from a constitutional corporation

113 Possessing non‑compliant retail packaging of tobacco products obtained from a constitutional corporation

(1) A person contravenes this subsection if: (a) the person possesses packaging; and (b) the packaging is retail packaging of tobacco products (other than an insert or onsert); and (c) the person obtained possession of the retail packaging from a constitutional corporation; and (d) the retail packaging does not comply with a tobacco product requirement.

Note: The physical elements of offences against subsections (5) and (7) are set out in this subsection (see section 165).

Exception—possession by individual (2) Subsection (1) does not apply if an individual possesses the retail packaging in connection with the individual’s personal use of a tobacco product. Exception—possession in the course of repackaging (3) Subsection (1) does not apply if, at the time the person possesses the retail packaging of the tobacco products: (a) the person has repackaged the tobacco products into other retail packaging that complies with the tobacco product requirements for the tobacco products; or (b) the person: (i) possesses other retail packaging that complies with the tobacco product requirements for the tobacco products; and (ii) intends to repackage the tobacco products into that retail packaging. Exception—possession in the course of compliance and enforcement activities (4) Subsection (1) does not apply to any of the following persons if the person possesses the retail packaging for the purposes of monitoring or investigating compliance with, or exercising powers under or in relation to, this Act: (a) an authorised officer; (b) a member or special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); (c) a member of the police force or police service of a State or Territory; (d) a State or Territory enforcement official.

Note 1: A defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (see subsection 13.3(3) of the Criminal Code).

Note 2: There is another exception to this subsection in section 120 (export exception).

Fault‑based offence (5) 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.

(6) For the purposes of subsection (5), strict liability applies to paragraphs (1)(b) and (c). Strict liability offence (7) 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.