118Possessing non‑compliant regulated tobacco items obtained from a constitutional corporation

118 Possessing non‑compliant regulated tobacco items obtained from a constitutional corporation

(1) A person contravenes this subsection if: (a) the person possesses a regulated tobacco item; and (b) the person obtained possession of the item from a constitutional corporation; and (c) at the time of possession, the item does not comply with a tobacco product requirement.

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

Exception—possession by individual for personal use (2) Subsection (1) does not apply to an individual who possesses the regulated tobacco item for the individual’s personal use. Exception—possession in the course of compliance and enforcement activities (3) Subsection (1) does not apply to any of the following persons if the person possesses the regulated tobacco item 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) and (3) (see subsection 13.3(3) of the Criminal Code).

Note 2: There is another exception to subsection (1) in section 120 (export exception).

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 paragraph (1)(b). 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.