Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023

Understanding this Act requires a precise reading of several distinct transitional concepts, periods, and deeming mechanisms set out in Schedule 2.

The Phased Transition Periods

The Act divides the regulatory changeover into two distinct temporal phases to manage the supply chain adjustment:

• The Main Transition Period (Item 1): A 12-month window commencing on 1 April 2024 (the commencement day of section 3 of the new Act). This period is primarily directed at manufacturers, importers, and wholesalers, allowing them to continue supplying tobacco products packaged under the old legislative specifications.
• The Retailer Transition Period (Item 1): A 3-month window commencing immediately after the end of the main transition period, running from 1 April 2025 to 30 June 2025. This is a dedicated sell-through phase for retail operators to clear remaining inventory that complies with the old standards but does not meet the new specifications.

Deemed Compliance (Schedule 2, Part 3, Division 2)

The core legal mechanism of the Act is "deemed compliance". Rather than immediately penalising entities for holding or supplying stock packaged under the repealed laws, the Act deems packaging and products compliant with the new Act if they satisfy specified legacy laws. This mechanism is applied granularly across several physical and graphic features:

• Physical Features (Item 6): Packaging complying with section 18 of the old TPP Act is taken to comply with section 74 of the new Act.
• Colour and Finish (Item 7): Packaging complying with section 19 of the old TPP Act is taken to comply with subsection 75(1) of the new Act.
• Marks (Item 8): Packaging complying with section 20 of the old TPP Act is taken to comply with section 77 of the new Act, excluding requirements for brand and variant names.
• Brand and Variant Names (Item 9): Packaging complying with section 21 of the old TPP Act is taken to comply with section 77 of the new Act regarding brand and variant name placement and formatting.
• Health Warnings (Item 10): Packaging complying with the Tobacco Information Standard is taken to comply with subsection 78(1) of the new Act.
• Mandatory Markings (Item 11): Packaging complying with section 20 and subsection 21(4) of the old TPP Act is taken to comply with section 79 of the new Act.
• Wrappers (Item 12): Plastic wrappers complying with section 22 of the old TPP Act are taken to comply with section 80 of the new Act.
• Inserts and Onserts (Item 13): Inserts and onserts complying with section 23 of the old TPP Act are taken to comply with subsections 82(1) and (2) of the new Act, with the explicit exception of health promotion inserts.
• Appearance and Physical Features (Item 14): Tobacco products (such as individual cigarettes) complying with section 26 of the old TPP Act are taken to comply with subsections 86(2), (3), and (4) of the new Act. This deeming provision specifically excludes prohibited terms, cigarette dimensions, and filter tips, which are subject to separate transitional rules.

Sell-Through Provisions (Item 15)

"Sell-through provisions" refer specifically to sections 94, 96, 108, and 110 of the new Act. These sections impose liability for selling, supplying, or possessing tobacco products in non-compliant retail packaging, including interactions involving constitutional corporations. The transitional Act suspends the application of these specific liability provisions for retailers during the 3-month retailer transition period, provided the commercial conditions in Item 16 are satisfied.

This legislation directly alters the legal obligations, operational timelines, and commercial risks for several distinct groups across the tobacco, e-cigarette, advertising, and retail sectors.

Tobacco Manufacturers, Importers, and Wholesalers

This group bears the primary administrative and operational burden of re-tooling manufacturing lines, redesigning packaging, and reformulating products to meet the new standards. The 12-month main transition period acts as their hard operational window. After 31 March 2025, these upstream entities can no longer rely on the deemed compliance provisions. Any products they supply or package must comply fully with the new Act. Consequently, these entities must manage their production volumes and distribution schedules to ensure they do not hold obsolete, non-compliant inventory on 1 April 2025.

Retailers of Tobacco Products

Retailers, defined under Item 15(1) as persons who sell or offer tobacco products for retail sale, benefit from a targeted 3-month liability shield. This shield allows them to sell down legacy stock that was supplied to them prior to 1 April 2025. However, retailers face significant compliance risks. They must ensure that any legacy stock sold during the retailer transition period was received before that period began. After 30 June 2025, retailers face immediate exposure to civil and criminal penalties under the new Act if they sell or possess products that do not comply with the new packaging standards, regardless of when those products were purchased or supplied.

Broadcasters, Datacasters, and Advertisers

Under the consequential amendments to the Broadcasting Services Act 1992 (Schedule 1, Items 3 to 11), the historical prohibition on broadcasting tobacco advertisements is expanded. The amendments insert "e-cigarette advertisement" alongside "tobacco advertisement" across Schedule 2 of the BSA. Furthermore, clause 6 of Schedule 6 is amended to ensure that matters provided on datacasting services can constitute the publication of tobacco or e-cigarette advertisements under the new Act. Commercial broadcasters, community broadcasters, and subscription television service providers must update their advertising clearance protocols to identify and exclude e-cigarette promotions.

Sponsors and Event Organisers

Part 2 of Schedule 2 directly impacts corporations and organisations that rely on or negotiate sponsorship arrangements. The prohibitions on tobacco sponsorships (section 38 of the new Act) and e-cigarette sponsorships (section 65 of the new Act) apply immediately to any contribution, arrangement, agreement, understanding, promise, or undertaking made or entered into on or after 1 April 2024. There is no transitional ramp-up or grandfathering for new sponsorship agreements entered into after the commencement day.

Regulatory and Enforcement Authorities

The Department of Health and Aged Care, along with authorised officers, must administer a dual regulatory system during the transitional phases. For 12 months, inspectors must evaluate compliance using both the old standards (to verify deemed compliance under Part 3, Division 2) and the new standards. For the subsequent 3 months, they must monitor the retail sector to ensure that retailers claiming the transitional shield are only selling legacy stock supplied before 1 April 2025.

The Act establishes a series of transitional duties, reporting mandates, and statutory safe harbours that modify the rights and obligations of regulated entities.

Immediate Sponsorship Duties (Schedule 2, Part 2)

Regulated entities have an immediate duty to comply with the sponsorship bans in the new Act from 1 April 2024:

• Tobacco Sponsorships (Item 3): The prohibition under section 38 of the new Act applies to any financial or in-kind contribution, contract, agreement, or promise made on or after the commencement day.
• E-Cigarette Sponsorships (Item 4): The prohibition under section 65 of the new Act applies to any contribution or agreement entered into on or after the commencement day. Legacy sponsorship contracts executed prior to 1 April 2024 are not retrospectively invalidated by these specific transitional provisions, but any new agreement, renewal, or variation on or after that date must comply immediately.

Safe Harbour Rights for Manufacturers and Importers (Schedule 2, Part 3, Division 2)

Upstream supply chain participants have a transitional right to manufacture, import, and distribute tobacco products that comply with legacy standards rather than the new Act's specifications. This right exists strictly within the 12-month main transition period. If a product and its packaging comply with the physical features, colour, finish, marks, brand names, health warnings, mandatory markings, wrappers, and insert rules of the old TPP Act or the Tobacco Information Standard, the manufacturer or importer is legally protected against prosecution or civil action under Chapter 3 of the new Act.

Safe Harbour Rights for Retailers (Schedule 2, Part 3, Division 3)

Retailers are granted a conditional right to sell and possess legacy-compliant tobacco products during the 3-month retailer transition period (Item 16). For this safe harbour to apply, the retailer must satisfy a four-part statutory test:

1. The retailer's conduct must occur during the retailer transition period (1 April 2025 to 30 June 2025).
2. The relevant requirement of the new Act must relate to the retail packaging of tobacco products.
3. The tobacco product must have been supplied to the retailer before the start of the retailer transition period (i.e., before 1 April 2025).
4. At the time of supply, the retail packaging must have been deemed compliant under the main transitional arrangements in Division 2.

Reporting and Administrative Duties (Schedule 2, Parts 5 & 6)

Reporting entities face structured transition duties regarding their statutory disclosure obligations:

• Legacy Reporting Preservation: Despite the repeal of the Tobacco Advertising Prohibition Act 1992 and the old TPP Act, legacy reporting duties are preserved. Section 34A of the 1992 Act (Item 30) and section 108 of the old TPP Act (Item 31) continue to apply to reports for the financial year ending 30 June 2024.
• New Reporting Commencement (Item 28): The obligations of reporting entities to submit reports to the Secretary of the Department of Health and Aged Care regarding tobacco product ingredients (section 131 of the new Act), product volumes (section 132 of the new Act), and marketing/promotional expenditure (section 133 of the new Act) apply to the 2024-2025 financial year and all subsequent financial years.
• General Administrative Reporting (Item 32): The Secretary’s reporting obligations under section 184 of the new Act apply immediately to the 2023-2024 financial year and later years.

The enforcement framework of this Act does not establish independent penalties. Instead, it imports and applies the compliance, monitoring, and investigation machinery of the new Act to the transitional provisions.

Incorporation of New Act Enforcement Machinery (Item 29)

Schedule 2, Item 29(1) dictates that Parts 6.2 and 6.3 of the new Act, along with any related provisions, apply for the purposes of ensuring compliance with the transitional Schedule. This integration has significant mechanical effects:

• Authorized Officers: The appointment and powers of authorised officers under Part 6.2 of the new Act are fully applicable to the transitional provisions. These officers have the authority to inspect premises, review commercial records, and verify stock dates during both transition periods.
• Regulatory Powers Act Integration: Part 6.3 of the new Act triggers the monitoring and investigation powers contained in the Regulatory Powers (Standard Provisions) Act 2014 (Cth). Under Item 29(2), these monitoring and investigation powers apply to ensure compliance with Schedule 2 of this Act and any transitional rules made under Item 33. This means authorised officers can enter premises, exercise search and seizure powers, and gather evidence to confirm whether retail stock was supplied before or after the cut-off dates.

Legally Defined Scope of Transitional Rules (Item 33)

Item 33 grants the Minister the power to make transitional rules by legislative instrument. This delegation of power is subject to strict statutory limits under Item 33(3). To prevent executive overreach during the transition phase, the Minister’s rule-making power is subject to five explicit prohibitions. The rules may not:

1. Create an offence or civil penalty.
2. Provide powers of arrest or detention.
3. Provide powers of entry, search, or seizure (which must rely solely on the primary legislative triggers imported via Item 29).
4. Impose a tax.
5. Set an amount to be appropriated from the Consolidated Revenue Fund.
6. Directly amend the text of this Act or the new Act.

This restriction ensures that any penalties applied during the transition periods are grounded in the primary text of the new Act rather than created via delegated legislative instruments.

This Act functions as an administrative bridge, altering how several other federal laws interact with tobacco and e-cigarette regulation.

┌───────────────────────────────────────────────────────────────────┐
│        Public Health (Tobacco and Other Products) Act 2023        │
└─────────────────────────────────┬─────────────────────────────────┘
                                  │
         Directly linked via transitional & application rules
                                  │
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┌───────────────────────────────────────────────────────────────────┐
│ Consequential Amendments & Transitional Provisions Act 2023 (Cth) │
└───────┬─────────────┬─────────────┬──────────────┬────────────┬───┘
        │             │             │              │            │
        ▼             ▼             ▼              ▼            ▼
┌──────────────┐┌────────────┐┌────────────┐┌────────────┐┌────────────┐
│ Broadcasting ││Competition ││  Criminal  ││   Social   ││  Taxation  │
│   Services   ││ & Consumer ││ Code Act  ││  Security  ││  Admin.    │
│   Act 1992   ││  Act 2010  ││    1995    ││  (Admin.)  ││  Act 1953  │
└──────────────┘└────────────┘└────────────┘└────────────┘└────────────┘

Broadcasting Services Act 1992

Items 3 to 11 of Schedule 1 amend Schedule 2 and Schedule 6 of the Broadcasting Services Act 1992. These amendments substitute references to the repealed Tobacco Advertising Prohibition Act 1992 with the new Act. The core change is the addition of "e-cigarette advertisement" alongside "tobacco advertisement". This change ensures that the strict broadcasting bans that previously applied only to tobacco now apply identically to e-cigarettes. Additionally, Item 10 inserts subclause 6(2) into Schedule 6, clarifying that nothing in the datacasting service rules prevents a matter provided on a datacasting service from constituting the publication of a tobacco or e-cigarette advertisement under the new Act.

Competition and Consumer Act 2010

Items 12 to 15 amend sections 87D and 130 of the Competition and Consumer Act 2010. These sections contain the statutory definitions of "smoking" and "tobacco product" used within the consumer protection and product safety frameworks. The amendments delete the references to the repealed Tobacco Advertising Prohibition Act 1992 and replace them with references to the new Act, ensuring that definitions remain consistent across consumer protection law and public health law.

Criminal Code Act 1995

Item 16 amends paragraph 320.2(2)(b) of the Criminal Code. This paragraph, which outlines defences or exceptions in relation to certain serious offences, previously referenced section 8 of the repealed Tobacco Advertising Prohibition Act 1992. The amendment replaces this with a reference to the new Act, ensuring that the criminal law framework correctly identifies lawful conduct under the consolidated tobacco regulations.

Social Security (Administration) Act 1999

Item 17 replaces the definition of "tobacco product" in section 123TC of the Social Security (Administration) Act 1999. The new definition links directly to the definition of a tobacco product within the new Act, or an e-cigarette product (within the meaning of the new Act) that contains tobacco. This alignment ensures that welfare card restrictions and income management provisions apply to the correct classes of products as defined under the consolidated public health framework.

Taxation Administration Act 1953

Items 18 to 20 amend Schedule 1 of the Taxation Administration Act 1953. Paragraphs 308-55(1)(a) and (b) are updated to point to Chapter 3 of the new Act rather than Chapter 2 of the old TPP Act. Furthermore, Item 20 inserts paragraph 308-55(1)(ea), which provides that tax administration provisions are triggered if a permanent ban under Chapter 4 of the new Act applies to the tobacco. This coordinates customs and taxation enforcement with the new Act’s product ban powers.

Trade Marks Act 1995

Items 21 to 25 amend section 231 and section 231A of the Trade Marks Act 1995. These provisions protect tobacco trade marks from being struck off the register for "non-use" when plain packaging laws prevent their physical application to products. The amendments substitute references to the old TPP Act with references to the new Act. Specifically, the note in subsection 231A(1) is updated to reference section 121 of the new Act (which contains the trade mark preservation provisions) instead of section 28 of the old TPP Act. This change preserves intellectual property rights during and after the transition.

The Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023 was introduced into the House of Representatives on 13 September 2023. The bill was introduced alongside the principal Public Health (Tobacco and Other Products) Act 2023 to ensure a coordinated legislative passage.

Following its introduction in the House of Representatives, the bill was introduced into the Senate on 19 October 2023. Both chambers passed the bill without any subsequent legislative amendments to the text as originally drafted. The Act received Royal Assent on 14 December 2023 and was designated as Act No. 119 of 2023.

In accordance with the commencement table in section 2(1):

• Sections 1 to 3, and any provisions not otherwise covered by the table, commenced on the day of Royal Assent (14 December 2023).
• Schedules 1 and 2 commenced on 1 April 2024, in direct alignment with the commencement of section 3 of the principal Public Health (Tobacco and Other Products) Act 2023.

As a transitional statute, this Act is designed to exhaust its own utility once the transitional periods expire. To date, there have been no subsequent amending Acts passed by the Commonwealth Parliament targeting this transitional Act, and its provisions remain in force as enacted to govern the specified transitional windows.

As this Act is a transitional and consequential statute that commenced its primary operations on 1 April 2024, there is no history of substantive judicial interpretation or constitutional challenge directly addressing its provisions.

However, the Act’s transitional design and its amendments to the Trade Marks Act 1995 are shaped by historical constitutional litigation. Specifically, the Tobacco Plain Packaging Act 2011 (which this Act repeals) was challenged in the High Court of Australia in JT International SA v Commonwealth of Australia [2012] HCA 43. In that case, tobacco manufacturers argued that plain packaging laws constituted an acquisition of intellectual property rights (trade marks and get-up) other than on "just terms", which would violate section 51(xxxi) of the Constitution. The High Court rejected this argument, holding that while the laws restricted the use of trade marks, the Commonwealth did not acquire any proprietary benefit.

To manage the risk of trade mark non-use claims, the old TPP Act included provisions ensuring that plain packaging restrictions did not result in trade mark revocation. The consequential amendments in Items 21 to 25 of Schedule 1 of this Act maintain this protection. By substituting section 121 of the new Act for section 28 of the old TPP Act, the legislature ensures that trade mark owners retain their registered rights despite the transition to the consolidated public health regulations. This continuity is designed to prevent trade mark cancellation actions based on the non-use of restricted brand elements during the transition.

Practitioners, corporate counsel, and compliance managers must monitor several specific legal risks and timing traps within this Act.

The "Pre-Existing Stock" Supply Date Trap

Retailers attempting to rely on the 3-month retailer transition period (1 April 2025 to 30 June 2025) face a strict evidentiary burden under Item 16(c). The safe harbour protection applies only if the tobacco product was supplied to the retailer before the start of the retailer transition period (meaning on or before 31 March 2025).

If a wholesaler delivers legacy-compliant stock to a retailer on or after 1 April 2025, the retailer has no transitional protection for that stock. Both the wholesaler and the retailer could face immediate liability for supplying and possessing non-compliant packaging. Retailers must maintain clear, date-stamped delivery dockets, invoices, and inventory logs to prove the exact physical arrival date of all legacy stock held on their premises during the sell-through period.

                  1 April 2024              1 April 2025            30 June 2025
                       │                         │                        │
                       ▼                         ▼                        ▼
───────────────────────┬─────────────────────────┬────────────────────────┬─────────►
                       │                         │                        │
                       │   MAIN TRANSITION       │   RETAILER TRANSITION  │  FULL
                       │   (12 Months)           │   (3 Months)           │  COMPLIANCE
                       │                         │                        │  REQUIRED
                       │                         │                        │
                       │  • Legacy compliance    │  • Retailers only      │  • No safe
                       │    deemed valid for     │  • Stock must be       │    harbours
                       │    all supply levels    │    supplied BEFORE     │    remain
                       │                         │    1 April 2025        │

Immediate Sponsorship Ban (No Grace Period)

Unlike product packaging, which benefit from a 12-month phase-out, the sponsorship prohibitions under Part 2 of Schedule 2 contain no transitional grace period. Under Items 3 and 4, the bans on tobacco and e-cigarette sponsorships apply to any contribution, arrangement, agreement, or promise made on or after 1 April 2024. Parties negotiating advertising, sports sponsorships, or arts funding cannot use the 12-month transition period to execute new short-term promotional contracts.

Exclusion of Health Promotion Inserts

Under Item 13(2), the transitional "deemed compliance" status for retail packaging inserts and onserts (which allows compliance with section 23 of the old TPP Act to satisfy subsections 82(1) and (2) of the new Act) explicitly excludes health promotion inserts. This means that while standard packaging inserts are temporarily protected, any required health promotion inserts must comply immediately with the new Act’s specifications (governed by Item 20) once the main transition period ends. There is no extended retailer sell-through protection for packaging that lacks the newly specified health promotion inserts.

Legacy Reporting Survival

Corporate accountants and compliance officers must not assume that the repeal of the Tobacco Advertising Prohibition Act 1992 and the old TPP Act immediately extinguishes historical reporting duties. Under Items 30 and 31, reporting obligations for the financial year ending 30 June 2024 remain active under the old statutory frameworks. Failure to submit these legacy reports can lead to compliance enforcement under the saved provisions of the repealed Acts, even as entities prepare to transition to the new reporting requirements for the 2024-2025 financial year.

To ensure compliance during the transition to the new Act, regulated entities should adopt a structured approach.

Step 1: Inventory Auditing and Supply Chain Mapping

Wholesalers, distributors, and retailers must establish clear tracking systems for all stock during the transition periods:

• Identify and categorise all inventory according to its packaging standard (legacy packaging under the old TPP Act versus new packaging under the new Act).
• For retailers, implement a strict "first-in, first-out" inventory management policy to ensure legacy-compliant stock is sold down before 1 April 2025.
• Secure and archive all supply invoices, customs clearance declarations, and delivery dockets for stock received prior to 1 April 2025. This documentation is required to establish the safe harbour defence under Item 16.

Step 2: Contractual Review and Sponsorship Auditing

Legal counsel must review all marketing and promotional agreements:

• Identify any sponsorship, promotional, or corporate contribution agreements scheduled to be executed, renewed, or varied on or after 1 April 2024.
• Ensure that no new agreements contain provisions that violate the expanded tobacco and e-cigarette sponsorship bans under sections 38 and 65 of the new Act.
• For broadcasters and datacasters, update advertising clearance guidelines to ensure "e-cigarette advertisements" are subject to the same vetting and rejection protocols as tobacco advertisements.

Step 3: Transitioning Manufacturing and Packaging Specifications

Upstream manufacturers and importers must align their production schedules with the hard 31 March 2025 cut-off:

• Verify that all packaging lines are transitioned to comply with the new Act's standards (including the standardisation requirements under section 76, health promotion inserts under section 82(1)(a), and prohibited terms under section 85) in time for distribution after 31 March 2025.
• Assess individual product features (such as cigarette dimensions and filter tips under section 86(4)) against the new requirements to ensure compliance before the main transition period expires.

Step 4: Aligning Financial Year Reporting Timelines

Corporate compliance officers must implement a dual-track reporting process for the overlapping financial years:

• Compile and submit all necessary compliance reports for the financial year ending 30 June 2024 using the legacy formats required by section 34A of the repealed Tobacco Advertising Prohibition Act 1992 and section 108 of the repealed old TPP Act.
• Establish data collection systems to capture ingredients, product volumes, and marketing expenditures as required by sections 131, 132, and 133 of the new Act, starting from the 1 July 2024 to 30 June 2025 reporting period.