Public Health (Tobacco and Other Products) Act 2023
128Possessing permanently banned tobacco products
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128 Possessing permanently banned tobacco products
(1) A person contravenes this subsection if: (a) the person possesses a tobacco product; and (b) at the time of possession, the tobacco product is permanently banned under this Act; and (c) 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 person possesses the tobacco product in or for the purposes of constitutional trade or commerce; (iv) the person possesses the tobacco product in a Territory.
Note: The physical elements of offences against subsections (4) and (6) are set out in this subsection (see section 165).
Exception—possession for personal use (2) Subsection (1) does not apply if: (a) the person who possesses the tobacco product is an individual; and (b) the possession of the tobacco product is for personal use by the individual; and (c) the tobacco product was imported in compliance with another law of the Commonwealth. Exception—sale or supply by way of export (3) Subsection (1) does not apply if: (a) the possession of the tobacco product is for the purpose of: (i) the sale or supply of; or (ii) 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)(b) and (c). 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.
Chapter 5—Reporting and information disclosure