Federal Register of Legislation - Australian Government

Primary content

Tobacco Advertising Prohibition Amendment Act 1995

  • - C2004A04873
  • No longer in force
Act No. 17 of 1995 as made
An Act to amend the Tobacco Advertising Prohibition Act 1992, and for related purposes
Date of Assent 29 Mar 1995
Date of repeal 10 Mar 2016
Repealed by Amending Acts 1990 to 1999 Repeal Act 2016
 

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995
- Assented to 29 March 1995

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - LONG TITLE

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

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - SECT 1
Short title etc.

1.(1) This Act may be cited as the Tobacco Advertising Prohibition Amendment Act 1995.


(2) In this Act, "Principal Act" means the Tobacco Advertising Prohibition Act 1992.*1*


(Minister's second reading speech made in-
Senate on 7 December 1994
House of Representatives on 1 March 1995)
*1* No. 218, 1992.

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - SECT 2
Commencement

2. This Act commences on the day on which it receives the Royal Assent.

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - SECT 3
Amendments of the Tobacco Advertising Prohibition Act 1992

3. The Principal Act is amended as set out in the Schedule.

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - SECT 4
Saving of notices

4. A notice published under subsection 9(5) of the Principal Act that was in force immediately before the commencement of this Act continues in force after that commencement as if it had been published under subsection 9(5) of the Principal Act as amended by this Act.

TOBACCO ADVERTISING PROHIBITION AMENDMENT ACT 1995 No. 17 of 1995 - SCHEDULE 1

SCHEDULE Section 3
AMENDMENTS OF THE TOBACCO ADVERTISING PROHIBITION ACT 1992
1. After section 4:
Insert:
Act not to apply so as to exceed Commonwealth power
"4A.(1) Unless the contrary intention appears, if a provision of this
Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it is the Parliament's intention that the provision is not to have the
invalid application, but is to have every valid application.
"(2) Despite subsection (1), the provision is not to have a particular
valid application if:
(a) apart from this section, it is clear, taking into account the
provision's context and the purpose or object underlying this Act, that
the provision was intended to have that valid application only if every
invalid application, or a particular invalid application, of the provision
had also been within the Commonwealth's legislative power; or
(b) the provision's operation in relation to that valid application
would be different in a substantial respect from what would have been its
operation in relation to that valid application if every invalid
application of the provision had been within the Commonwealth's
legislative power.
"(3) Subsection (2) does not limit the cases in which a contrary
intention may be taken to appear for the purposes of subsection (1).
"(4) This section applies to a provision of this Act, whether enacted
before, at or after the commencement of this section.
"(5) This section is in addition to, and not in derogation of, section
15A of the Acts Interpretation Act 1901.
"(6) In this section:
'application' means an application in relation to:
(a) one or more particular persons, things, matters, places,
circumstances or cases; or
(b) one or more classes (however defined or determined) of persons,
things, matters, places, circumstances or cases;
'invalid application', in relation to a provision, means an application
because of which the provision exceeds the Commonwealth's legislative
power;
'valid application', in relation to a provision, means an application
which, if it were the provision's only application, would be within the
Commonwealth's legislative power.".
2. Section 8:
Insert:
" 'government or political matters' means government or political
matters relating to any level of government in Australia, and includes any
of the following matters:
(a) participation in, association with and communications in relation to
any election or appointment to public office; and
(b) political views or public conduct relating to activities that have

Back to Top

become the subject of political debate; and
(c) the performance, conduct, capacity or fitness for office of a person
elected or appointed to, or seeking election or appointment to, any public
office; and
(d) the actions or policies, or proposed actions or policies, of any
government in Australia or any Australian political party;
'non-tobacco product' means a product other than a tobacco product;".
3. After subsection 9(1):
Insert:
(Exception-political discourse)
"(1A) To remove any doubt, it is declared that if:
(a) something ('the advertisement') does not promote, and is not
intended to promote, any particular tobacco product or particular range of
tobacco products; and
(b) the advertisement does not promote, and is not intended to promote,
smoking; and
(c) the advertisement relates solely to government or political matters;
the advertisement is not a tobacco advertisement for the purposes of this
Act.
(Use of name of manufacturer etc.)
"(1B) Without limiting the scope of paragraphs (1A)(a) and (b), the use
in an advertisement of the whole name of a manufacturer, distributor or
retailer of tobacco products does not, of itself, constitute:
(a) promotion of a tobacco product or range of tobacco products for the
purposes of paragraph (1A)(a); or
(b) promotion of smoking for the purposes of paragraph (1A)(b).
(Prohibited uses of names)
"(1C) Subsection (1B) does not apply in relation to use of such a name
in a way prohibited by regulations made for the purposes of this
subsection.".
4. After subsection 9(3):
Insert:
(Exceptions-management advertisements and certain advertisements as to
availability of products)
"(3A) To remove any doubt, it is declared that the following do not
constitute tobacco advertisements:
(a) the doing of anything that is, or apart from this Act would be,
required to be done by any other law of the Commonwealth or by any law of
a State or Territory;
(b) an advertisement (for example, an advertisement for staff or calling
for tenders), relating to the internal management of the business of a
manufacturer, distributor or retailer of tobacco products, that does not
promote a tobacco product or smoking;
(c) an advertisement by a manufacturer, distributor or retailer of
tobacco products indicating that tobacco products, or tobacco products of
a particular kind, are available from the manufacturer, distributor or
retailer, as the case may be, provided that the advertisement does not:
(i) state the brand name of any individual product; or
(ii) contain any other matter that would enable any individual product
to be identified; or
(iii) promote, or give publicity to, any individual product;
(d) the taking of any action to prevent a product from causing injury to
anyone, including action:
(i) to recall a product; or
(ii) to disclose a defect in, or a dangerous characteristic of, a
product; or
(iii) to disclose circumstances in which the use of a product is or
may be dangerous; or
(iv) to disclose procedures for disposing of a product; or
(v) to tell people who have bought a product that the product will be
repaired or replaced, or that the price of the product will be refunded.
(Exception-non-tobacco product having the same name as a tobacco product)
"(3B) If:
(a) apart from this subsection, something ('the advertisement') that
relates to a non-tobacco product would, technically, be a tobacco
advertisement because the name, or part of the name, of the non-tobacco
product is the same as, or substantially similar to, the name, or part of
the name, of:
(i) a tobacco product; or
(ii) the manufacturer, distributor or retailer of a tobacco product;
and
(b) the manufacturer of the non-tobacco product is not associated in any
way with the manufacturer of the tobacco product;
then, despite subsection (1), the advertisement is not a tobacco
advertisement for the purposes of this Act.
(Related bodies corporate taken to be associated with each other)
"(3C) Without limiting the circumstances in which 2 persons would, apart
from this subsection, be taken to be associated with each other for the
purposes of subsection (3B), 2 bodies corporate that are related to each
other are taken to be associated with each other for the purposes of that

Back to Top

subsection.".
5. Subsections 9(4) and (5):
Omit the subsections (and the note to subsection (5)), substitute:
(Exception-certain advertisements for non-tobacco products)
"(4) If:
(a) apart from this subsection, something ('the advertisement') would,
technically, be a tobacco advertisement because it gives publicity to, or
otherwise promotes:
(i) the purchase or use of a tobacco product or a range of tobacco
products referred to in paragraph (1)(b); or
(ii) the whole or a part of a trade mark registered as mentioned in
paragraph (1)(c) in respect of goods that are or include tobacco products;
or
(iii) the whole or a part of a design registered as mentioned in
paragraph (1)(d) in respect of articles that are or include tobacco
products; or
(iv) the whole or a part of the name of a person referred to in
paragraph (1)(e); or
(v) any words or designs, or combination of words and designs,
associated as mentioned in paragraph (1)(f) with a tobacco product or a
range of tobacco products; and
(b) either:
(i) if subparagraph (a)(i), (ii), (iii) or (v) applies, a tobacco
product or tobacco products of a kind referred to in the subparagraph were
sold in Australia on or before 1 January 1995; or
(ii) if subparagraph (a)(iv) applies, the person referred to in that
subparagraph was in existence under that name on 1 January 1995 or at a
time before that date; and
(c) the advertisement does not explicitly promote, or give publicity to,
any particular tobacco product or particular range of tobacco products;
and
(d) the advertisement is not an advertisement in respect of whose
publication section 21 would have applied if paragraphs (1)(c) and (d) of
that section had not been enacted; and
(e) the advertisement:
(i) explicitly promotes, or gives publicity to; or
(ii) appears on, or on the packaging of;
a product that is covered by a notice in force under subsection (5);
then, despite subsection (1), the advertisement is not a tobacco
advertisement for the purposes of this Act.
(Specification of classes of products for the purposes of subsection (4))
"(5) For the purposes of subsection (4), the Minister may, by notice
published in the Gazette, specify a class of products if, and only if:
(a) the Minister is satisfied that:
(i) the products are not tobacco products; and
(ii) the products, or similar or substantially similar products,
were available for purchase from a place in Australia before 1 April 1992;
and
(b) the Minister is satisfied that not specifying the class of products
would cause significant financial detriment to the manufacturer of
products in the class or to some other person involved in the distribution
or sale of products in the class.
Note: Section 29 provides for the making of applications to have classes
of products specified in notices under this subsection.".
6. Section 10:
After subsection (3), insert:
(Exception-advertisements in telephone directories)
"(3A) For the purposes of this Act, the publication of the name of a
manufacturer, distributor or retailer of tobacco products in a telephone
directory does not, of itself, amount to the publication of a tobacco
advertisement.".
7. Section 11:
Repeal the section, substitute:
Meaning of "holding company" and "related body corporate"
"11. For the purposes of this Act:
(a) a body corporate is a holding company of another body corporate if,
for the purposes of the Corporations Law, the first-mentioned body
corporate is a holding company of the other body corporate; and
(b) the question whether 2 bodies corporate are related to each other is
to be determined in the same way as the question would be determined under
the Corporations Law.".
8. Section 13:
(a) Omit the penalty, substitute:
"Penalty: 120 penalty units.".
(b) Add:
"(2) This section has effect subject to section 26A.".
9. Subsection 15(3):
Omit the penalty.
10. Section 15:
Add at the end:
"(4) This section has effect subject to section 26A.
Penalty: 120 penalty units.".
11. Section 23:
Omit the penalty, substitute:
"Penalty: 120 penalty units.".
12. After section 26:
Insert:
Broadcast or publication of advertisements during flights of aircraft
"26A.(1) It is not an offence against this Act to broadcast or publish a
tobacco advertisement in an aircraft during a flight of the aircraft
unless the flight begins at a place in Australia and is intended to end at
another place in Australia.
"(2) For the purposes of subsection (1), each sector of a flight of an
aircraft is taken to be a separate flight.".
13. Paragraph 29(1)(a):
Omit "product, or a particular class of products,", substitute "class of
products".