Excise guidelines for the tobacco industry
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09 - OFFENCES
- offences under the Excise Act
- infringement notices, and
- application of the Criminal Code.
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.
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 (Schedule to the Criminal Code Act 1995 ). 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 two levels of offence for similar conduct:
- a higher penalty applies to an act or omission intentionally or recklessly committed, that is there is a fault element, and
- a lower penalty applies to the same act or omission on a strict liability basis, that is there is a no fault element.
- 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.
- A licensed manufacturer must not manufacture excisable goods in contravention of this Act or the manufacturer licence. Penalty: 100 penalty units.
- Strict liability applies to sub-section (2).
|Example: A person manufactures excisable tobacco products without a manufacturer licence. This is a contravention of subsection 25(2) which says that a person shall not manufacture excisable goods without a manufacturer licence. The penalty at the foot of subsection 25(2) is 100 penalty units. We bring a court action against the person and the court convicts the person. The penalty cannot exceed 100 penalty units but it can be less.|
|Where an offence also causes goods to be forfeited,  conviction by the courts results in the forfeited goods being condemned.  This means they are no longer your property and we can dispose of the goods as we see fit.|
|You are encouraged to seek independent legal advice in relation to your own individual circumstances.|
|OUR COMMITMENT TO YOU The information in this publication is current at August 2008. This publication is an expression of the Commissioner's opinion on the operation of tobacco excise legislation. This publication is not legally or administratively binding on the Commissioner and is not a 'public ruling' for the purposes of Section 105-60 or Division 358 of Schedule 1 to the Taxation Administration Act 1953 . The law does not provide for legally binding rulings on tobacco excise legislation. Since we regularly revise our publications to take account of any changes to the law, you should make sure this edition is the latest. The easiest way to do this is by checking for a more recent version on our website at www.ato.gov.au|