127Dealing in permanently banned tobacco products

127 Dealing in permanently banned tobacco products

(1) A person contravenes this subsection if: (a) the person engages in conduct; and (b) the conduct is: (i) the importation or manufacture of; or (ii) the sale or supply of, or the offer to sell or supply; a tobacco product; and (c) at the time the person engages in the conduct, the tobacco product is permanently banned under this Act; and (d) any of the following apply: (i) the person is a constitutional corporation; (ii) the person is a body corporate that is incorporated in a Territory; (iii) the conduct occurs in the course of constitutional trade or commerce; (iv) the conduct occurs in a Territory.

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

Exception—importation for personal use (2) Subsection (1) does not apply if: (a) the person who engages in the conduct is an individual; and (b) the conduct is the importation of the tobacco product for personal use by the individual; and (c) another law of the Commonwealth permits the importation of the tobacco product; and (d) the amount of the tobacco product does not exceed the limit (if any) on the importation of such a product prescribed by that other law. Exception—sale or supply by way of export (3) Subsection (1) does not apply if: (a) the conduct engaged in by the person is the sale or supply of, or an offer to sell or supply, the tobacco product by way of export; and (b) the sale or supply is not, or would not be, a retail sale.

Note: 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)

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 paragraphs (1)(c) and (d). 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).

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).

Civil penalty:

(a) for an individual—2,000 penalty units; and
(b) for a body corporate—20,000 penalty units.