Excise guidelines for duty-free shops
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This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
11 OFFENCES
| 11.1 PURPOSE |
| 11.2 INTRODUCTION |
| 11.3 OFFENCES |
| 11.4 PENALTIES |
| 11.5 INFRIGEMENT NOTICES |
| 11.6 APPLICATION OF THE CRIMINAL CODE |
| 11.7 TERMS USED |
11.1 PURPOSE
This Chapter deals with:
- •
- offences under the Excise Act
- •
- penalties
- •
- infringement notices, and
- •
- application of the Criminal Code.
11.2 INTRODUCTION
This Chapter is a general discussion on offences. It is not meant as legal advice and you are encouraged to seek independent legal advice in relation to your own individual circumstances.
There are a number of acts or omissions under the Excise Act that are offences.
A conviction for an offence may result in a penalty as provided for within the Excise Act. The penalty provided may be in the form of ' penalty units ', a term of imprisonment or an amount of money calculated by a set formula.
11.3 OFFENCES
Certain acts or omissions are offences under the Excise Act for which penalties are prescribed.
For penalties to apply to an offence (except where an infringement notice has been issued), you must first be convicted of the offence in a court of law following prosecution.
Certain offences under the excise legislation are strict liability offences as defined in section 6.1 of the Criminal Code. Essentially, strict liability means that the offence consists of the physical act or omission only. It is not necessary for the court to find that you knowingly committed or were reckless or negligent in relation to the act or omission.
Some sections of the Excise Act prescribe the following 2 levels of offence for similar conduct:
- •
- a higher penalty applies to an act or omission intentionally or recklessly committed (that is, where there is a 'fault' element), and
- •
- a lower penalty applies to the same act or omission on a strict liability basis (that is, where no 'fault' element needs to be proven).
For example, section 26 of the Excise Act prescribes that licensed manufacturers are to manufacture in accordance with the Act and their licence.
- (1)
- A licensed manufacturer must not intentionally manufacture excisable goods knowing, or being reckless as to whether, the manufacture contravenes this Act or the manufacturer licence.
- Penalty: 2 years imprisonment or 500 penalty units.
- (2)
- A licensed manufacturer must not manufacture excisable goods in contravention of this Act or the manufacturer licence. Strict liability applies.
- Penalty: 100 penalty units.
- (3)
- Strict liability applies to subsection (2).
11.4 PENALTIES
The Excise Act contains many provisions that include a penalty at the foot of the section or subsection. This means that if you are convicted of an offence against the particular provision, you can receive a penalty not exceeding the penalty mentioned. [264] The penalty listed is thus the maximum penalty, but the Courts can impose a lesser penalty.
As indicated, certain offences provide for alternative penalties, for example, subsection 33(1) of the Excise Act provides for a penalty of 2 years imprisonment or 500 penalty units.
In some cases the courts can impose both penalties upon conviction. [265]
11.5 INFRINGEMENT NOTICES
We may issue an infringement notice [268] as an alternative to prosecution for unlawfully possessing, or unlawfully selling excisable goods. [269] An infringement notice imposes a penalty of 20 penalty units.
To issue an infringement notice, we must have a reasonable belief that you have committed the offence. Notices must be issued within 12 months of the commission of the offence. [270]
The penalty is payable on the day specified in the infringement notice which must be at least 28 days after the day the notice was issued. [271]
If you do not pay the penalty, we may withdraw the infringement notice and prosecute you.
You cannot be prosecuted for the same offence where an infringement notice has been issued unless the infringement notice is withdrawn.
If we withdraw an infringement notice after you have paid the penalty, we will refund it to you.
11.6 APPLICATION OF THE CRIMINAL CODE
Chapter 2 of the Criminal Code applies to offences against the Excise Act. However, Parts 2.5 and 2.6 of the Criminal Code, which are in Chapter 2, do not apply. [272] In some courts, Excise prosecutions are able to be treated as criminal matters while in other courts they are treated as civil matters. This has an effect on issues such as the burden and standard of proof required.
11.7 TERMS USED
The value of a penalty unit is contained in section 4AA of the Crimes Act 1914, and is indexed regularly. The dollar amount of a penalty unit is available at Penalties .
Amendment history
| Part | Comment |
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| Throughout | Content checked for technical accuracy and currency.
Updated in line with current ATO style and accessibility requirements. |
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
Section 90 of the Constitution.
Ha v New South Wales [1997] HCA 34.
Ha v New South Wales [1997] HCA 34; 97 ATC 4674 at [4684], per Brennan CJ, McHugh, Gummow and Kirby JJ.
Section 5 of the Excise Tariff Act imposes excise duty on goods 'manufactured or produced'. In this Guide, the term 'manufactured' means manufactured or produced unless otherwise specified.
For an explanation of customs and excise tariff proposals, see About Tariff Proposals .
In the absence of a tariff amendment bill, tariff proposals then before the House may be affirmed towards the end of a period of sittings by means of a tariff validation bill.
For an explanation of customs and excise tariff proposals, see About Tariff Proposals .
Section 25 of the Excise Act.
Subsection 4(1) (definition of 'storage licence') and Part IV of the Excise Act.
Section 61A of the Excise Act.
Sections 61D and 61E of the Excise Act.
Section 7 of the Excise Act and section 1A of the Excise Tariff Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsection 35(2) of the Excise Regulation.
Subsections 36(4) and (5) of the Excise Regulation.
Sections 41 and 42 of the Excise Regulation.
Subsections 38(1), (2) and (3) of the Excise Regulation.
Subsection 61D(12) of the Excise Act.
Sections 61D and 61E of the Excise Act.
Section 4 of the Excise Act.
Sections 61D and 61E of the Excise Act.
Sections 61D and 61E of the Excise Act.
Subsections 61D(1) and 61E(1) of the Excise Act.
Subsections 61D(1) and 61E(1) of the Excise Act.
Subsection 61D(6) and 61E(5) of the Excise Act.
Subsections 61D(2) and 61E(2) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excuse Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 4(1) of the Customs Act.
Definition of 'storage licence' in subsection 4(1) of the Excise Act.
Section 53 of the Excise Act.
Section 60 of the Excise Act.
Section 61A of the Excise Act.
Section 26 of the Excise Act.
Subsection 86(2) of the Excise Act.
Section 87 of the Excise Act.
Section 6 of the Crimes Act 1914 .
Sections 11.1, 11.2 and 11.5 of the Schedule to the Criminal Code Act 1995 .
Section 87AA of the Excise Act.
Section 50 of the Excise Act.
Section 4(1) of the Excise Act defines the Collector as the CEO or in relation to a section of an Excise Act for which a person is an authorised officer - that authorised officer.
Section 39E of the Excise Act.
Section 79 of the Customs Act.
Section 39 of the Excise Act.
Section 39FA of the Excise Act.
Subsection 78(1) of the Customs Act excludes duty-free shops from being covered by an excise-equivalent warehouse licence.
Section 39O of the Excise Act.
Division 355 of Schedule 1 to the Taxation Administration Act 1953 (TAA).
Section 40 of the Excise Act.
Section 4(1) of the Customs Act defines 'excise-equivalent goods' as those goods prescribed by the Customs Regulation 2015 . They are generally imported goods which would attract an excise duty if manufactured in Australia.
Subdivision 355-C of Schedule 1 to the TAA.
Section 39 of the Excise Act.
Sections 25 and 117 of the Excise Act.
Sections 39FA and 39LA of the Excise Act.
Sections 25 and 117 of the Excise Act.
Section 6A of the Excise Act.
Section 117 of the Excise Act.
Section 120 of the Excise Act.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
The term used in section 58 of the Excise Act is 'entry for home consumption'.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 4(1) of the Customs Act.
Sections 39B and 39C of the Excise Act.
Paragraph 39A(2)(d) of the Excise Act.
Paragraph 39A(2)(c) of the Excise Act.
Paragraph 39A(2)(f) of the Excise Act.
Sections 39B and 39C of the Excise Act.
Sections 39B and 39C of the Excise Act.
Section 39B of the Excise Act.
Section 39C of the Excise Act.
Paragraphs 39B(e) and (f) of the Excise Act.
Moore, B (2004) The Australian Oxford Dictionary , 2nd edn, Oxford University Press, Melbourne.
Paragraph 39B(f) of the Excise Act.
Paragraph 39A(2)(f) of the Excise Act; section 995-1 of the Income Tax Assessment Act 1997 ; subsection 318(1) of the Income Tax Assessment Act 1936 (ITAA 1936).
Subsection 318(1) of the ITAA 1936.
Section 995-1 of the Income Tax Assessment Act 1997 for definition of 'relative' for this purpose.
Subsection 318(7) of the ITAA 1936.
Subsection 318(2) of the ITAA 1936.
Subsection 318(3) of the ITAA 1936.
Subsection 318(4) of the ITAA 1936.
Paragraph 39A(2)(fa) of the Excise Act.
Paragraphs 39A(2)(g) and (h) of the Excise Act.
Paragraph 39A(2)(i) of the Excise Act.
Paragraph 39A(2)(ia) of the Excise Act.
Paragraph 39(2)(j) of the Excise Act.
Paragraph 39A(2)(k) of the Excise Act.
Paragraph 39A(2)(l) of the Excise Act.
Martino and Australian Taxation Office [2002] AATA 1242.
Paragraph 39G(1)(k) of the Excise Act.
Subsection 39D(4) and section 39DA of the Excise Act.
Subsection 39D(1) of the Excise Act.
Subsection 39D(3) of the Excise Act.
Section 39Q of the Excise Act.
Sections 16 to 22 of the Excise Act.
Section 39Q of the Excise Act.
Paragraph 120(1)(iv) of the Excise Act.
Paragraph 120(2)(d) of the Excise Act.
Note that this is different to the consideration for granting a licence. In granting a licence, we can take into account any misleading statement or, if you knowingly made a false statement, in your application. For suspension or cancellation, we can consider any statement you make to us in relation to excise matters.
Subsection 39L(2) of the Excise Act.
Subsection 39L(4) of the Excise Act.
Subsection 39L(3) of the Excise Act.
Paragraph 39L(4)(b) of the Excise Act.
Subsections 39G(1) and 39L(1) of the Excise Act.
Sections 61D and 61E of the Excise Act.
Section 39K of the Excise Act.
Subsection 39K(6) of the Excise Act.
Subsection 39N(2) of the Excise Act.
Section 39LA of the Excise Act.
Section 39Q of the Excise Act.
Subsections 39J(2) and 39L(5) of the Excise Act.
Section 39P of the Excise Act.
Paragraph 39K(1)(b) of the Excise Act.
Subsection 39K(1A) of the Excise Act.
Subsection 39M(1) of the Excise Act.
This does not mean movements within the bounds of premises covered by your licence, rather movements from premises covered by your licence to another place.
Section 61A of the Excise Act.
Sections 16 to 22 of the Excise Act.
Section 60 of the Excise Act.
While there is no specific provision in the Excise Act which allows permissions to be cancelled (unlike licences), in accordance with subsection 33(3) of the Acts Interpretations Act 1901 the power to grant the permission provides the power to cancel or revoke the permission.
Section 117A of the Excise Act.
Section 61A of the Excise Act.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsections 32(1) and (3) of the Excise Regulation.
Subsection 35(1) of the Excise Regulation.
Subsection 35(2) of the Excise Regulation.
Subsections 36(1) to (3) of the Excise Regulation.
Subsections 36(4) and (5) of the Excise Regulation.
Subsections 38(1) to (3) of the Excise Regulation.
Subsections 38(1) to (3) of the Excise Regulation.
Subsection 39(1) of the Excise Regulation.
Section 39 of the Excise Regulation.
Subsections 38(4) and (5) of the Excise Regulation.
Subsection 32(2) of the Excise Regulation.
Subsection 32(3) of the Excise Regulation.
Paragraph 61D(10)(a) of the Excise Act.
Section 33 of the Excise Regulation.
Section 41 of the Excise Regulation.
Section 41 of the Excise Regulation.
Section 42 of the Excise Regulation. This is normally a firm contracted by the duty-free shop to 'pluck' the invoices. That company is known as Duty Free Security.
Section 8 of the Excise Regulation.
Section 50 and paragraph 61D(7)(c) of the Excise Act.
Paragraph 61D(10)(b) of the Excise Act and section 46 of the Excise Regulation.
Paragraph 61D(7)(c) of the Excise Act.
Subsections 37(1), (2) and (3) of the Excise Regulation.
Section 46 of the Excise Regulation.
Section 39 of the Excise Regulation.
Section 59 of the Excise Regulation.
Subsection 32(1) of the Excise Regulation.
Subsection 32(2) of the Excise Regulation.
Subsections 45(1) to (3) of the Excise Regulation.
Subsections 45(1) to (3) of the Excise Regulation.
Subsection 45(3) of the Excise Regulation.
Subsection 45(4) of the Excise Regulation.
Subsection 32(2) of the Excise Regulation.
Subsection 32(3) of the Excise Regulation.
Section 50 and paragraph 61D(7)(c) of the Excise Act.
Paragraph 61D(7)(c) of the Excise Act.
Section 43 of the Excise Regulation.
Subsections 43(5) and (6) of the Excise Regulation.
Section 43 of the Excise Regulation.
Section 39 of the Excise Regulation.
Section 39 of the Excise Regulation.
Subsection 32(4) of the Excise Regulation.
Section 61 of the Excise Act.
Section 61A of the Excise Act.
Section 61C of the Excise Act.
Paragraphs 120(1)(iv) and 120(2)(b) of the Excise Act.
Section 120 of the Excise Act.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
The term used in section 58 of the Excise Act is 'entry for home consumption'.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61D(1) of the Excise Act
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Table item 7 in clause 2 of Schedule 1 to the Excise Regulation.
Subsection 52(1) of the Excise Regulation.
Subsection 61E(1) of the Excise Act.
Section 53 of the Excise Regulation.
Subsection 52(2) of the Excise Regulation.
Subsection 52(3) of the Excise Regulation.
Paragraph 61E(6)(b) of the Excise Act.
Section 61 of the Excise Act.
Section 61A of the Excise Act.
Section 61C of the Excise Act.
Paragraphs 120(1)(iv) and (2)(b) of the Excise Act.
Section 120 of the Excise Regulation.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
The term used in section 58 of the Excise Act is 'entry for home consumption'.
Subsection 61E(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Section 60 of the Excise Act.
ATO Interpretative Decision ATO ID 2004/61 Excise: goods given away without payment of excise duty .
ATO Interpretative Decision ATO ID 2001/595 Excise: Liability to pay an amount equal to the excise duty on excisable goods stolen from the premises of a licensed excise manufacturer or a licensed storage place .
ATO Interpretative Decision ATO ID 2004/62 Excise: goods sold without payment of excise duty .
Section 162C of the Excise Act.
For the latest version of the Schedule, refer to Excise duty rates for alcohol .
Section 6A of the Excise Tariff Act.
Section 154 of the Excise Act.
Section 155 of the Excise Act and section 359-60 of Schedule 1 to the TAA.
Section 61 of the Excise Act.
Section 61C of the Excise Act.
Paragraphs 120(1)(iv) and (2)(b) of the Excise Act.
Section 120 of the Excise Act.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
The term used in section 58 of the Excise Act is 'entry for home consumption'.
Subsection 61D(1) of the Excise Act.
Subsection 61E(1) of the Excise Act.
Section 78 of the Excise Act.
Section 8 of the Excise Regulation.
Section 8 and table item 1 of clause 1 of Schedule 1 to the Excise Regulation.
Section 8 and table item 2 of clause 1 of Schedule 1 to the Excise Regulation.
Pan Macmillan Australia (2025) The Macquarie Dictionary online, www.macquariedictionary.com.au , accessed 8 September 2025.
Section 160A of the Excise Act.
Clause 2 of Schedule 1 to the Excise Regulation.
Section 55 of the Excise Regulation.
Subsection 55(2)(a) of the Excise Regulation.
Clause 2 of Schedule 1 to the Excise Regulation.
Item 8 of Clause 2 of Schedule 1 to the Excise Regulation.
Item 6 of Clause 2 of Schedule 1 to the Excise Regulation.
Item 6(b) of Clause 2 of Schedule 1 to the Excise Regulation.
Section 10 of the Excise Regulation.
Item 8 of Clause 2 of Schedule 1 to the Excise Regulation.
Section 61C of the Excise Act.
Subsection 61C(3)(h) of the Excise Act.
Subsection 61C(3A) of the Excise Act.
Subsections 61C(3)(c) and 61C(3A) of the Excise Act.
Subsection 61C(7) of the Excise Act.
Paragraphs 162C(1)(d), (e) and (f) of the Excise Act.
Section 61C of the Excise Act.
Paragraphs 120(1)(iv) and 120(2)(b) of the Excise Act.
Section 120 of the Excise Act.
Note the legislation uses the term 'delivered for home consumption' (see, for example, sections 61 and 61C of the Excise Act).
See R v Lyon [1906] HCA 17; Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; Carmody v F C Lovelock Pty Ltd [1970] HCA 35; Caltex Australia Petroleum Pty Ltd v Commissioner of Taxation [2008] FCA 1951 and Moama Refinery Pty Ltd v Chief Executive Officer of Customs [2001] FCA 1287.
The term used in section 58 of the Excise Act is 'entry for home consumption'.
For example, a decision not to issue a movement permission under section 61A of the Excise Act.
Objections are governed by Part IVC of the TAA.
These are usually conducted in the Administrative Review Tribunal (ART) or the Federal Court.
Section 39Q of the Excise Act.
Paragraph 162C(1)(c) of the Excise Act.
Paragraphs 162C(1)(i) and (j) of the Excise Act.
Section 14ZU of the TAA.
Section 359-5 of Schedule 1 to the TAA.
Section 5 of the Excise Act and section 4D of the Crimes Act.
Section 127A of the Excise Act.
Section 116 of the Excise Act.
Section 151 of the Excise Act.
Part XA of the Excise Act.
Subsections 117(2) and 117B(2) of the Excise Act.
Section 129B of the Excise Act.
Section 129D of the Excise Act.
Section 6B of the Excise Act.
References
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