Commonwealth Numbered Acts Commonwealth Numbered ActsPublishing 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).
(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).
(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 e-cigarette products 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.
Note: A defendant bears a legal burden in relation to the matters in this subsection in a prosecution for an offence (see section 13.4 of the Criminal Code ). The same applies in proceedings for a civil penalty.