Smoking and Tobacco Products Advertisements (Prohibition) Act 1989

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No. 181 of 1989

An Act to prohibit certain advertisements relating to smoking and tobacco products, and for related purposes

[Assented to 28 December 1989]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title

1. This Act may be cited as the Smoking and Tobacco Products Advertisements (Prohibition) Act 1989.

Commencement

2. This Act commences on the first day after the end of the period of 12 months beginning on the day on which it receives the Royal Assent.

Interpretation

3. (1) In this Act, unless the contrary intention appears:

“Australia” includes the external Territories;

“corporation” means:

(a) a body corporate that is a foreign corporation within the meaning of paragraph 51 (xx) of the Constitution; or

(b) a body corporate that is a trading corporation, within the meaning of paragraph 51 (xx) of the Constitution formed within the limits of the Commonwealth; or

(d) a body corporate that is controlled by a corporation described in paragraph (a), (b) or (c); or

(e) a partnership at least one of the partners in which is a corporation described in paragraph (a), (b), (c) or (d);

“newspaper” includes a magazine, journal or periodical or any other publication copies of which contain:

(a) news, intelligence, information or reports of occurrences; or

(b) remarks, observations or comments in relation to any news, intelligence, information or occurrences or in relation to any other matter of interest to the public or any section of the public;

whatever language it is printed in and whether it is published at regular or irregular intervals;

“printed” includes made by any method of producing text or pictures in a material form;

“print medium” means a newspaper, handbill, program, ticket or other printed document, but does not include a document displayed as a poster;

“publish” does not include communicate to a person in the tobacco trade or in a tobacco product trade;

“smoking” means inhaling or puffing the smoke of cigarettes or cigars of any composition or tobacco in any form;

“tobacco product” means cigarettes or cigars of any tobacco composition or tobacco in any form, and includes snuff, cigarette paper, cigarette rollers and pipes;

(2) For the purpose of this Act, the question whether a body corporate is the holding company of another body corporate shall be determined in the same manner as that question is required to be determined by section 7 of the Companies Act 1981.

Extension to Territories

4. This Act extends to every external Territory.

Prohibition of advertising of smoking and tobacco products

5. (1) Subject to section 6, a corporation must not publish, or cause to be published, in a print medium an advertisement:

(a) for smoking; or

(b) for, or for the use of:

(i) cigarettes; or

(ii) cigarette tobacco; or

(iii) other tobacco products.

Penalty: $60,000.

(2) A reference in subsection (1) to the publication of an advertisement shall be read as not including a reference to the publication by a corporation of matter of an advertising character as an accidental or incidental accompaniment of the publication of other matter in circumstances in which the corporation does not receive payment or other valuable consideration for publishing the advertising matter.

Print media printed outside Australia

6. Subsection 5 (1) does not apply to a print medium:

(a) printed outside Australia; and

(b) not principally intended for distribution or use in Australia.

Certain actions do not lie

7. Where a contract entered into before or after the commencement of this Act relates to the advertising of tobacco products or smoking, an action does not lie in any court against a party to the contract for failing, neglecting or refusing, after the commencement of this Act, to publish an advertisement relating to tobacco products or smoking as required by the contract if the failure, neglect or refusal is attributable to, or occasioned by, the operation of this Act.

Conduct by directors, servants or agents

8. (1) Where, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is to be taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate unless the body corporate establishes that it took reasonable precautions to avoid the conduct.

(3) A reference in subsection (1) to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

(4) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

(5) A reference in this section to an offence against this Act includes a reference to an offence created by section 6, 7 or 7a, or subsection 86 (1), of the Crimes Act 1914, being an offence that relates to this Act.

Additional operation of this Act

9. (1) Without prejudice to its effect apart from this section, this Act has effect as provided by this section.

(2) This Act has, by force of this subsection, the effect it would have if:

(a) in subsection 5 (1) “a corporation must not” were omitted and “a person must not, in the course of, or for the purposes of, trade or commerce to which this Act applies by virtue of subsection 9 (3)” were substituted; and

(b) in subsection 5 (1) “$60,000” were omitted and “$12,000” substituted; and

(3) For the purpose of this Act having effect by virtue of subsection (2), this Act applies to trade and commerce:

(a) between Australia and places outside Australia; or

(b) among the States; or

(d) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.

(4) This Act has, by force of this subsection, the effect it would have if:

(a) in subsection 5 (1) “a corporation must not” were omitted and “a person must not in a Territory (not being the Australian Capital Territory, the Northern Territory or Norfolk Island)” were substituted; and

(b) in subsection 5 (1) “$60,000” were omitted and “$12,000” substituted.

[Second reading speech made in—

Senate on 31 August 1989

House of Representatives on 22 December 1989]

Overview

The Smoking and Tobacco Products Advertisements (Prohibition) Act 1989 was enacted to address the growing public health concerns associated with smoking and tobacco use by prohibiting certain advertisements relating to these products. The Act was passed by the Queen, in conjunction with the Senate and the House of Representatives of the Commonwealth of Australia, and came into effect after a 12-month period following Royal Assent. Its primary objective is to limit the promotion of smoking and tobacco products, thereby reducing their appeal and use within the community. The Act applies to corporations, including those formed within Australia and foreign corporations, and extends to all Australian territories. It imposes strict prohibitions on the publication of advertisements for smoking or tobacco products in print media, with significant penalties for non-compliance. The Act also includes provisions for the application of certain sections to individuals, rather than solely corporations, and extends its scope to various forms of trade and commerce within and outside Australia.

Scope and Application

The Smoking and Tobacco Products Advertisements (Prohibition) Act 1989 is a Commonwealth legislation that aims to prohibit certain advertisements relating to smoking and tobacco products. The Act applies to corporations, which are defined broadly to include various types of entities, such as foreign and trading corporations, holding companies, controlled entities, and partnerships involving such corporations. It also extends its application to the external territories of Australia. The Act prohibits corporations from publishing advertisements for smoking or tobacco products in print media, with specified exceptions for print media printed outside Australia and not intended for Australian distribution or use. Furthermore, the Act imposes personal liability on directors, servants, or agents of corporations for offences committed within the scope of their authority. It also applies to trade and commerce involving interstate or international transactions and the supply of goods or services to the Commonwealth or its instrumentalities. The Act extends its prohibitions to persons in certain territories, albeit with a reduced penalty.

Key Provisions

The Smoking and Tobacco Products Advertisements (Prohibition) Act 1989 (Cth) (the "Act") is a significant piece of legislation aimed at curbing the advertising of smoking and tobacco products in Australia. Section 5(1) of the Act mandates that corporations are prohibited from publishing advertisements for smoking or tobacco products in any print media. This prohibition includes advertisements for cigarettes, cigarette tobacco, and other tobacco products. The penalty for breaching this section is a fine of $60,000. However, the prohibition does not apply to print media printed outside Australia that is not principally intended for distribution or use in Australia, as specified in section 6. Section 7 further clarifies that where a contract for advertising tobacco products or smoking exists prior to the Act's commencement, no action lies in court against a party for failing to fulfil the advertising requirements post-enactment, provided the failure is due to the operation of the Act. The Act imposes obligations on corporations to ensure they do not engage in prohibited advertising activities. Corporations must take reasonable steps to ensure that their directors, servants, or agents do not engage in conduct that breaches the Act. Section 8 provides that the state of mind of the corporation, including its knowledge, intention, opinion, belief, or purpose, can be established by showing that the conduct was carried out by a director, servant, or agent within the scope of their actual or apparent authority. Additionally, section 9 extends the application of the Act to various forms of trade and commerce, including interstate trade and commerce, trade and commerce between a State and a Territory, and the supply of goods or services to the Commonwealth. Breaches of the Act carry significant consequences. The primary offence under section 5(1) carries a maximum penalty of $60,000. The Act also stipulates that where the Act applies to trade and commerce by virtue of section 9(3), the penalty for breach is $12,000, as detailed in section 9(2). The enforcement of these penalties is intended to act as a deterrent against the advertising of smoking and tobacco products, thereby reducing their visibility and appeal. Furthermore, section 9(4) specifies that in certain territories, the penalty for breach is also $12,000, provided the territory is not the Australian Capital Territory, the Northern Territory, or Norfolk Island.

Area of Law: Consumer Law
Instrument: Act
Concepts: Definitions & Interpretation; Offence Provisions; Prohibited Conduct; Extraterritorial Application

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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