19Prohibition on publishing tobacco advertisements

19 Prohibition on publishing tobacco advertisements

Publishing a tobacco advertisement (1) A person contravenes this subsection if: (a) the person publishes material, or authorises or causes material to be published; and (b) the material is a tobacco advertisement. Publishing material intended etc. to be a tobacco advertisement (2) A person contravenes this subsection if: (a) the person publishes material, or authorises or causes material to be published; and (b) the material is not a tobacco advertisement, but: (i) the person intends the material to be a tobacco advertisement; or (ii) the person is reckless as to whether the material is a tobacco advertisement.

Note 1: The physical elements of offences against subsections (4) and (7) are set out in subsections (1) and (2) (see section 165).

Note 2: For tobacco advertisement exceptions, see Division 3.

Exception for permitted publications (3) Subsections (1) and (2) do not apply to the publication of a tobacco advertisement if the publication is permitted by a provision in Division 5.

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).

Fault‑based offence (4) A person commits an offence if the person contravenes subsection (1) or (2).

Penalty:

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

(5) The fault element for paragraph (1)(b) is recklessness. 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) or (2).

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) or (2).

Civil penalty:

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

Defence for individual publication (9) It is a defence in a prosecution for an offence, or in proceedings for a civil penalty, for a contravention of subsection (1) or (2) if the defendant proves that: (a) the defendant published the material: (i) as an individual; and (ii) on the defendant’s own initiative; and (b) the publication was not in the course of, or in any way associated with, the manufacture, importation, distribution or sale of regulated tobacco items by any person; and (c) the defendant did not receive any direct or indirect benefit (whether financial or not) from any person for publishing the material.