42Prohibition on publishing e‑cigarette advertisements

42 Prohibition on publishing e‑cigarette advertisements

Publishing an e‑cigarette 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 an e‑cigarette advertisement; 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 publication is made in the course of constitutional trade or commerce; (iv) the publication is made using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; (v) the publication is made in a Territory. Publishing material intended etc. to be an e‑cigarette 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 an e‑cigarette advertisement, but: (i) the person intends the material to be an e‑cigarette advertisement; or (ii) the person is reckless as to whether the material is an e‑cigarette advertisement; 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 publication is made in the course of constitutional trade or commerce; (iv) the publication is made using a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution; (v) the publication is made in a Territory.

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 e‑cigarette advertisement exceptions, see Division 3.

Exception for permitted publications (3) Subsections (1) and (2) do not apply to the publication of an e‑cigarette 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) For the purposes of subsection (4): (a) recklessness is the fault element for paragraph (1)(b); and (b) strict liability applies to paragraphs (1)(c) and (2)(c). 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).