Excise guidelines for the tobacco industry

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09 - OFFENCES

9.1 PURPOSE

This chapter deals with:

  • offences under the Excise Act
  • penalties
  • infringement notices, and
  • application of the Criminal Code.

9.2 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.

9.3 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 (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 which was intentionally or recklessly committed, that is there is a fault element, and
  • lower penalty applies to the same act or omission on a strict liability basis, that is there is no fault element.
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. Penalty: 100 penalty units.
  3. Strict liability applies to sub-section (2).

9.4 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 then you can receive a penalty not exceeding the penalty mentioned. [262] The penalty listed is thus the maximum penalty but the Courts can impose a lesser penalty.

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.

As indicated above certain offences provide for alternative penalties, for example subsection 26(1) provides for a penalty of 2 years imprisonment or 500 penalty units.

For some offences if a person is convicted of that offence then the courts can impose both penalties. [263]

Where an offence also causes goods to be forfeited, [264] conviction by the courts results in the forfeited goods being condemned. [265] This means they are no longer your property and we can dispose of the goods as we see fit.

9.5 INFRINGEMENT NOTICES

We may issue an infringement notice [266] as an alternative to prosecution for unlawfully possessing, or unlawfully selling excisable goods. [267] 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. [268]

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. [269] In the event of non-payment, prosecution action may be brought against the person who committed the alleged offence.

You cannot be prosecuted for the same offence where an infringement notice has been issued unless the infringement notice is withdrawn.

We can withdraw an infringement notice and if we do so after you have paid the penalty we must refund that to you. [270]

9.6 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, which are in Chapter 2 , do not apply. [271] In some courts, Excise prosecutions are able to be treated as criminal matters while in other courts they are treated as civil matters. This, obviously, has an effect on issues such as the burden and standard of proof required.

You are encouraged to seek independent legal advice in relation to your own individual circumstances.  

9.7 TERMS USED

Penalty units

A penalty unit is specified in section 4AA of the Crimes Act 1914 and, at the time of publication, is $170.

9.8 LEGISLATION (quick reference guide)

In this chapter we have referred to the following legislation:

9.8.1 Excise Act 1901

Section 5 - Penalty at foot of sections

Section 6B - Application of the Criminal Code

Section 25 - Only licensed manufacturers to manufacture excisable goods

Section 26 - Licensed manufacturers to manufacture in accordance with Act and licence

Section 116 - Forfeiture

Section 117 - Unlawful possession of excisable goods

Section 117B - Unlawfully selling excisable goods

Section 127A - Alternative penalties

Section 129A - Purpose and effect of this Part (Part XA - penalty instead of prosecution)

Section 129B - When an infringement notice may be issued

Section 129D - Due date for penalty

Section 129F - Withdrawal of infringement notice

Section 151 - Conviction to operate as a condemnation

9.8.2 Crimes Act 1914

Section 4AA - Penalty units

Section 4D - Penalties

9.8.3 Criminal Code Act 1995

Section 6.1 - Strict liability

Chapter 2 - General principles of criminal responsibility

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

Excise guidelines for the tobacco industry
  Date: Version:
  1 July 2006 Original document
You are here 1 September 2014 Updated document
  1 April 2015 Current document

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