Tobacco Advertising Prohibition Amendment Act 2012

Administered by Department of Health, Disability and Ageing

Legislation au C2012A00005 In force Act

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No. 5, 2012

An Act to amend the Tobacco Advertising Prohibition Act 1992, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Tobacco Advertising Prohibition Act 1992

Part 1—Amendments

Part 2—Transitional

Tobacco Advertising Prohibition Amendment Act 2012

No. 5, 2012

An Act to amend the Tobacco Advertising Prohibition Act 1992, and for related purposes

[Assented to 6 March 2012]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Tobacco Advertising Prohibition Amendment Act 2012.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	6 March 2012
2. Schedule 1	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	6 September 2012

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Tobacco Advertising Prohibition Act 1992

Part 1—Amendments

1 Subparagraph 6(3)(a)(i)

After “16,”, insert “16A, 16B,”.

2 Section 7

After “16,”, insert “16A, 16B,”.

3 Section 8

Insert:

electronically: a person publishes a tobacco advertisement electronically if the person publishes the tobacco advertisement within the meaning of paragraph 10(1)(da).

4 Subsection 10(1)

Omit “publishes”, substitute “publishes”.

Note: The heading to section 10 is altered by omitting “a tobacco advertisement” and substituting “a tobacco advertisement”.

5 After paragraph 10(1)(d)

Insert:

(da) the person brings the advertisement, or something that contains the advertisement, to the notice of, or disseminates the advertisement, or something that contains the advertisement, to, the public, or a section of the public, by an electronic means in connection with a telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution including, for example:

(i) by means of the internet; or

(ii) by making the advertisement remotely accessible by a computer, mobile phone or any other electronic device;

6 At the end of subsection 13(1) (after the penalty)

Insert:

Note: A defendant bears an evidential burden in relation to the matters in section 14: see subsection 13.3(3) of the Criminal Code.

7 Paragraph 15(1)(a)

After “16,”, insert “16B,”.

8 At the end of subsection 15(1)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

9 Subsection 15(2)

After “16,”, insert “16B,”.

10 At the end of subsection 15(2)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

11 Subsection 15(3)

After “16,”, insert “16B,”.

12 At the end of subsection 15(3)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

13 After section 15

Insert:

15A Tobacco advertisements not to be published electronically

Offence

(1) A person commits an offence if:

(a) the person publishes something, or authorises or causes something to be published; and

(b) the thing is a tobacco advertisement; and

(d) the tobacco advertisement is published in Australia.

Penalty: 120 penalty units.

Exceptions

(2) Subsection (1) does not apply to the publication of a tobacco advertisement if its publication is permitted by any of sections 16A, 16B, 17, 19 and 20.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2): see subsection 13.3(3) of the Criminal Code.

Geographical application

(3) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

Meaning of published in Australia

(4) In this section, a tobacco advertisement that is published electronically is published in Australia if:

(a) the advertisement originates in Australia; or

(b) all of the following apply:

(i) the advertisement did not originate in Australia, or the advertisement’s origin cannot be determined;

(ii) the advertisement has an Australian link;

(iii) the advertisement is accessible, or intended to be accessible, by the public, or a section of the public, in Australia.

(5) A tobacco advertisement has an Australian link if:

(a) at a particular time, the advertisement is published, or authorised or caused to be published, by an entity, or the person or persons constituting or responsible for an entity; and

(b) at that time, the circumstances described in the following table apply to the entity.

Item	Entity	Applicable circumstances
1	Individual	Any of the following circumstances: (a) the individual is an Australian citizen; (b) the individual is an individual whose continued presence in Australia is not subject to a limitation as to time imposed by law; (c) the individual is physically present in Australia.
2	Body corporate	Any of the following circumstances: (a) the body corporate has been incorporated in Australia; (b) the body corporate has its central management and control in Australia.
3	Trust	The trust has been created in Australia.
4	Partnership	The partnership has been formed in Australia.
5	Unincorporated body	The unincorporated body has its central management and control in Australia.

14 Paragraph 16(2)(b)

After “content”, insert “, format”.

15 After section 16

Insert:

16A Point of sale advertising permitted—internet sales

(1) A person may publish a tobacco advertisement on the internet if:

(a) the advertisement is accessible by the public, or a section of the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing the advertisement to purchase a tobacco product; and

(d) that law contains provisions expressly dealing with the publication of advertisements for tobacco products on the internet that provide a facility for a person accessing the advertisement to purchase a tobacco product; and

(e) under those provisions, publishing the advertisement is not an offence.

(2) A person may publish a tobacco advertisement on the internet if:

(a) the advertisement is accessible by the public, or a section of the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing the tobacco advertisement to purchase a tobacco product; and

(i) there is no law of the State or Territory that regulates the advertising of tobacco products on the internet; or

(ii) there is such a law, but it does not contain any provisions expressly dealing with the publication of advertisements for tobacco products on the internet that provide a facility for a person accessing the advertisement to purchase a tobacco product; and

(d) the publication of the advertisement complies with all applicable requirements set out in regulations made for the purposes of this subsection.

(3) In this section, a tobacco advertisement provides a facility for a person accessing the advertisement to purchase a tobacco product if the advertisement is published in conjunction with the facility or otherwise includes or provides the facility.

(4) Regulations made for the purposes of subsection (2) may prescribe requirements as to any of the following:

(a) the size, content, format and location of tobacco advertisements;

(b) without limiting paragraph (a)—the inclusion in tobacco advertisements of any of the following:

(i) health warnings;

(ii) warnings about age restrictions on the sale of tobacco products;

(iii) information about any fees, taxes and charges payable in relation to tobacco products;

16B Conduct by carriers etc. permitted

(1) A person may publish a tobacco advertisement if:

(a) the person is a carrier and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as a carrier; or

(b) the person is a carriage service provider and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as a carriage service provider; or

(c) the person is an internet service provider and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as an internet service provider; or

(d) the person is an internet content host and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as an internet content host.

(2) In this section:

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

internet content host has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

Part 2—Transitional

16 Publication of a tobacco advertisement before commencement

(1) This item applies if a tobacco advertisement was published electronically (within the meaning of the Tobacco Advertising Prohibition Act 1992 as amended by Part 1 of this Act) before the commencement of Part 1 of this Act.

(2) The Tobacco Advertising Prohibition Act 1992, as amended by Part 1 of this Act, applies in relation to the publication of the tobacco advertisement if the tobacco advertisement is accessible by the public, or a section of the public, at or after the commencement of Part 1 of this Act.

[Minister’s second reading speech made in—

House of Representatives on 17 November 2010

Senate on 23 March 2011]

(268/10)

Overview

The Tobacco Advertising Prohibition Amendment Act 2012, enacted by the Parliament of Australia, serves to amend the Tobacco Advertising Prohibition Act 1992, extending its reach to encompass electronic advertising within Australia. This legislative amendment addresses the growing issue of tobacco advertising through digital platforms, which had not been adequately regulated under the previous Act. The objective of the Tobacco Advertising Prohibition Amendment Act 2012 is to ensure that the prohibition on tobacco advertising extends to electronic media, thereby maintaining consistency with the Act's overarching goal of reducing tobacco use by limiting exposure to tobacco advertising. The Act came into effect on 6 March 2012, with specific provisions concerning the electronic publication of tobacco advertisements commencing on 6 September 2012. The Act introduces significant changes to the definition and scope of tobacco advertising, specifically including electronic publications and clarifying the circumstances under which such advertisements can be lawfully published. It also imposes strict penalties for the unauthorised electronic publication of tobacco advertisements within Australia, reinforcing the legislative intent to curb tobacco use through stringent advertising controls. The Act maintains the existing framework for exemptions and regulatory compliance for certain types of electronic tobacco advertising, ensuring that the new provisions do not inadvertently impede legitimate business activities.

Scope and Application

The Tobacco Advertising Prohibition Amendment Act 2012 amends the Tobacco Advertising Prohibition Act 1992 to prohibit the electronic publication of tobacco advertisements in Australia. This Act applies to any person or entity publishing tobacco advertisements electronically within Australia. The amendments include expanding the definition of "publishes" to encompass electronic means and introducing specific prohibitions against the electronic publication of tobacco advertisements. The Act also includes exceptions for certain types of electronic publications, such as those by carriers, carriage service providers, internet service providers, and internet content hosts acting in their professional capacities. The amendments commenced on 6 March 2012, with additional provisions taking effect on 6 September 2012. The Act's geographical application is determined by the extended geographical jurisdiction provisions under section 15.2 of the Criminal Code, which applies to category B offences. Exemptions and exceptions are detailed within the Act, ensuring compliance with state or territory regulations where applicable.

Key Provisions

The Tobacco Advertising Prohibition Amendment Act 2012 amends the Tobacco Advertising Prohibition Act 1992 by introducing new definitions, extending the types of tobacco advertisements covered, and introducing new exceptions and penalties. Firstly, the Act updates the definition of "publishes" in section 10 to include electronic publication, with specific examples provided in subsection 10(1)(da) (sections 5 and 6). Secondly, it adds new sections 16A and 16B, allowing for tobacco advertisements to be published electronically under certain conditions and by certain entities (sections 7, 8, 12, 13 and 15A). Thirdly, it extends the scope of the Act to include advertisements published electronically (section 15A), with exceptions for certain activities and entities (section 15A(2)). The Act also places evidential burdens on defendants in relation to certain matters (sections 6, 8, 10 and 12). The Tobacco Advertising Prohibition Amendment Act 2012 imposes obligations on publishers of tobacco advertisements to ensure that their activities comply with the Act. This includes ensuring that any electronic advertisements are published in accordance with the new provisions in section 16A and 16B. Entities publishing tobacco advertisements electronically must ensure that they meet the conditions set out in the Act, including being subject to applicable state or territory laws and regulations, and complying with any requirements prescribed in regulations (section 16A(2)(d) and (e)). Publishers must also ensure that their activities do not contravene the new provisions prohibiting the electronic publication of tobacco advertisements (section 15A). The Tobacco Advertising Prohibition Amendment Act 2012 introduces new offences and penalties for breaches of the Act. The maximum penalty for publishing a tobacco advertisement electronically is 120 penalty units (section 15A(1)). This penalty applies to any person who publishes a tobacco advertisement electronically, including individuals, body corporates, trusts, partnerships, and unincorporated bodies (section 15A(5)). The Act also places an evidential burden on defendants in relation to the matters in subsection 15A(2) (section 15A(2)). Additionally, the extended geographical jurisdiction provisions in section 15.2 of the Criminal Code apply to offences against section 15A (section 15A(3)).

Area of Law: Consumer Law; Health Law
Instrument: Act
Concepts: Commencement Provisions; Offence Provisions; Regulatory Standards; Enforcement Powers

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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