94Selling or supplying tobacco products in non‑compliant retail packaging

94 Selling or supplying tobacco products in non‑compliant retail packaging

(1) A person contravenes this subsection if: (a) the person: (i) sells a tobacco product; or (ii) offers a tobacco product for sale; or (iii) otherwise supplies (whether or not for consideration) a tobacco product; and (b) at the time the product is sold, offered for sale or supplied, the product is in retail packaging; and (c) the retail packaging does not comply with a tobacco product requirement.

Note 1: The physical elements of offences against subsections (3) and (5) are set out in this subsection (see section 165).

Note 2: See section 16 for an extended meaning of offer.

Exception—cigars sold or supplied to retailer for individual resale (2) Subsection (1) does not apply if: (a) the sale, offer or supply is in respect of multiple tobacco products that are cigars; and (b) the sale or supply is to another person (the retailer) who is ordinarily engaged in the business of selling tobacco products by way of retail sale in Australia; and (c) the person reasonably believes that the retailer intends to repackage each cigar individually for retail sale as a single cigar.

Note 1: A defendant bears an evidential burden in relation to the matters in this subsection (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 (3) 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.

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b). Strict liability offence (5) 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 (6) 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.