Presumptions for offences involving tobacco products—whether goods are tobacco products
233BABADE Presumptions for offences involving tobacco products—whether goods are tobacco products
This section applies for the purposes of the following provisions:
paragraphs 233BABAD(1)(b), (2)(b), (2A)(b) and (2B)(b);
paragraphs 233BABADA(1)(b) and (2)(b);
paragraphs 233BABADB(1)(b), (2)(b), (3)(b) and (4)(b).
Presumption—goods in the form of cigarettes
Subject to subsection (6), goods are taken to be tobacco products if the goods are in the form of cigarettes.
Presumption—appearance and sampling of goods
Subject to subsection (6), goods (the relevant goods) are taken to be tobacco products if:
the relevant goods are seized at the same time and from the same place; and
a sample of the relevant goods is tested in accordance with a method determined by the Comptroller‑General of Customs under subsection (7); and
the results of the test are that the goods in the sample are tobacco products; and
the remainder of the relevant goods are similar, or substantially similar, in appearance to the goods in the sample.
To avoid doubt, goods seized at the same time and from the same place may contain more than one set of relevant goods for the purposes of subsection (3).
Presumption—content and characteristics of goods
Subject to subsection (6), goods are taken to be tobacco products if:
the goods contain nicotine; and
an officer of Customs, who is authorised under subsection (8), reasonably suspects that the goods are tobacco products, having regard to one or more of the following:
the packaging of the goods;
the labelling of the goods;
the smell of the goods;
the appearance of the goods.
Overturning the presumption
Subsections (2), (3) and (5) do not apply if the defendant adduces or points to evidence that suggests a reasonable possibility that the goods are not tobacco products.
A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
Administrative provisions
The Comptroller‑General of Customs may, by legislative instrument, determine a method for testing a sample of goods for the purposes of subsection (3).
The Comptroller‑General of Customs may, by writing, authorise an officer of Customs to examine goods for the purposes of subsection (5).
An authorisation made under subsection (8) is not a legislative instrument.
This Act’s bill:Second reading speech
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