96Possessing tobacco products in non‑compliant retail packaging

96 Possessing tobacco products in non‑compliant retail packaging

(1) A person contravenes this subsection if: (a) the person possesses a tobacco product; and (b) at the time of possession, the product is in retail packaging; and (c) the retail packaging does not comply with a tobacco product requirement.

Note: The physical elements of offences against subsections (5) and (7) are set out in this subsection (see section 165).

Exception—cigars possessed by retailer for individual resale (2) Subsection (1) does not apply if: (a) the person possesses multiple tobacco products that are cigars; and (b) the person is ordinarily engaged in the business of selling tobacco products by way of retail sale in Australia; and (c) the person intends to repackage each cigar individually for retail sale as a single cigar. Exception—possession by individual for personal use (3) Subsection (1) does not apply if: (a) an individual possesses the tobacco product for the individual’s personal use; and (b) the amount of the tobacco product in the individual’s possession does not exceed the amount (if any) prescribed by regulations made for the purposes of this paragraph. Exception—possession in the course of compliance and enforcement activities (4) Subsection (1) does not apply to any of the following persons if the person possesses the tobacco product for the purposes of monitoring or investigating compliance with, or exercising powers under or in relation to, this Act: (a) an authorised officer; (b) a member or special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); (c) a member of the police force or police service of a State or Territory; (d) a State or Territory enforcement official.

Note 1: A defendant bears an evidential burden in relation to the matters in subsections (2), (3) and (4) (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 (5) 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.

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