Tobacco Charges Assessment Act 1955 (REPEALED)
Part I - Preliminary
SECTION 1 (Repealed by 101 of 2006)
1
Short title
This Act may be cited as the Tobacco Charges Assessment Act 1955. SECTION 2 (Repealed by 101 of 2006) 2 Commencement
This Act shall come into operation on 1 January 1956. SECTION 4 (Repealed by 101 of 2006) Interpretation (1)
In this Act, unless the contrary intention appears:
(2)
For the purposes of this Act, a person shall be deemed to have sold tobacco leaf if, in the performance of a contract under which he has received, or is entitled to receive, valuable consideration, he supplies tobacco leaf the property in which passes, under the terms of the contract, to another person, and that other person shall be deemed to have purchased that tobacco leaf.
(3)
For the purposes of this Act, tobacco leaf grown by a manufacturer shall be deemed to be appropriated by him for manufacturing purposes if, and only if, it is placed in storage awaiting delivery to his factory for manufacture or, not having been so placed in storage, it is delivered to his factory for manufacture.
SECTION 5 (Repealed by 101 of 2006) Queensland Tobacco Leaf Marketing Board deemed to be broker (1)
In this section, the Tobacco Leaf Marketing Board means The Tobacco Leaf Marketing Board constituted under The Primary Producers' Organisation and Marketing Acts, 1926 to 1954, of the State of Queensland.
(2)
For the purposes of this Act:
(a) the Tobacco Leaf Marketing Board shall, in exercising the powers to sell tobacco leaf conferred on it by or under The Primary Producers' Organisation and Marketing Acts, 1926 to 1954, of the State of Queensland, be deemed to be a broker; and
(b) where that Board sells tobacco leaf that has been divested from a grower by or under those Acts, the grower shall be deemed to own that tobacco leaf immediately before the sale and the sale shall be deemed to be made by the Board on behalf of the grower.
SECTION 6 (Repealed by 101 of 2006) 6 Application of Act
This Act applies to and in relation to the assessment and collection of the charges imposed by the Tobacco Charge Act (No. 1) 1955, the Tobacco Charge Act (No. 2) 1955 and the Tobacco Charge Act (No. 3) 1955. SECTION 7A (Repealed by 101 of 2006) 7A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
The Commissioner has the general administration of this Act. SECTION 9A (Repealed by 101 of 2006) Annual report (1)
The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act, including any breaches or evasions of this Act of which the Commissioner has notice.
(2)
The Minister shall cause a copy of a report furnished to him under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he receives the report.
(3)
For the purposes of section 34C of the Acts Interpretation Act 1901, a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.
SECTION 10 (Repealed by 101 of 2006) Secrecy (1)
In this section, officer means a person who is or has been appointed or employed by the Commonwealth and, by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of another person, disclosed or obtained under this Act.
(1A)
For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2)
Subject to this section, an officer shall not, either directly or indirectly, either while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to another person, any information respecting the affairs of another person acquired by the officer as mentioned in subsection (1).
(2A)
Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.
(3)
An officer shall not be required to produce in a court a return, assessment or notice of assessment made or given for the purposes of this Act, or to divulge or communicate to a court a matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary for him to do so for the purpose of carrying this Act into effect.
(4)
Nothing in this section prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorized to do so by the Commissioner, a Second Commissioner or a Deputy Commissioner, from communicating information to:
(a) a person performing, in pursuance of an appointment or employment by the Commonwealth, any duty arising under an Act administered by the Commissioner, for the purpose of enabling that person to carry out that duty;
(b) a board exercising a function under an Act administered by the Commissioner, or a member of such a board;
(d) the Australian Statistician;
(e) the Secretary to the Department of Primary Industry; or
(f) the Comptroller-General of Customs.
(5)
A person to whom information is communicated under subsection (4), and a person or employee under his control is, in respect of that information, subject to the same rights, privileges, obligations and liabilities, under subsections (2) and (3), as if he were an officer.
(6)
An officer shall, if and when required by the Commissioner to do so, make an oath or declaration, in a manner and form approved by the Commissioner, to maintain secrecy in conformity with this section.
Part III - Liability to the charges SECTION 11 (Repealed by 101 of 2006) 11 Persons liable to pay the charges
Subject to section 12:
(a) charge imposed by the Tobacco Charge Act (No. 1) 1955 is payable by the person who owns the tobacco leaf immediately before it is sold;
(b) charge imposed by the Tobacco Charge Act (No. 2) 1955 is payable by the manufacturer by whom the tobacco leaf is purchased; and
(c) charge imposed by the Tobacco Charge Act (No. 3) 1955 is payable by the manufacturer by whom the tobacco leaf is grown. SECTION 12 (Repealed by 101 of 2006) Brokers (1)
Where a broker sells tobacco leaf on behalf of another person to a manufacturer, the broker shall pay to the Commissioner the charge (if any) imposed by the Tobacco Charge Act (No. 1) 1955 on that tobacco leaf by reason of the sale.
(2)
Where a manufacturer purchases tobacco leaf from a broker, the broker may, by agreement with that manufacturer, pay to the Commissioner the charge (if any) imposed by the Tobacco Charge Act (No. 2) 1955 on that tobacco leaf by reason of the purchase.
(3)
Where charge payable under the Tobacco Charge Act (No. 1) 1955 or the Tobacco Charge Act (No. 2) 1955 has been paid to the Commissioner by a person, or has been recovered by the Commissioner from a person, the liability of another person to pay that charge to the Commissioner is, by force of this subsection, discharged to the extent of the amount so paid or recovered.
(4)
Where an amount of charge which a broker is required to pay under this section has been paid by, or recovered by the Commissioner from, the broker, the broker may recover the amount so paid or recovered from the person liable under section 11 to pay the charge.
(5)
Where a broker sells tobacco leaf on behalf of another person to a manufacturer, the broker may, for the purpose of payment of charge imposed by the Tobacco Charge Act (No. 1) 1955, retain so much of an amount payable to a person in respect of that tobacco leaf as is equal to the amount of charge on that tobacco leaf.
(6)
In subsections (4) and (5), charge does not include additional charge payable under this Act.
Part IV - Returns SECTION 13 (Repealed by 101 of 2006) 13 Returns
For the purposes of this Act:
(a) a broker who, during a period of 3 months ending on the last day of March, June, September or December in any year, sells tobacco leaf on behalf of another person to a manufacturer; and
(b) a person, other than a broker, who is liable to pay charge by reason of:
In addition to any return that is required under section 13, the Commissioner may, by notice in writing, call upon a person to furnish to him, within a time specified in the notice, such return, or such further or fuller return, as the Commissioner requires. SECTION 15 (Repealed by 101 of 2006) Commissioner to obtain information and evidence (1)
For the purpose of inquiring into or ascertaining the liability of a person under this Act, the Commissioner may, by notice in writing, require a person:
(a) to furnish him with such information as he requires; or
(b) to attend and give evidence before him or before an officer authorized by him to receive the evidence;
(2)
Subject to subsection (3), the Commissioner may require the information or evidence to be furnished or given on oath, and either orally or in writing, and for that purpose he or the officer so authorized by him may administer an oath.
(3)
Where a person required under this section to furnish information or give evidence on oath conscientiously objects to take an oath, he may make an affirmation instead of taking an oath.
(4)
The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend before the Commissioner or an officer.
SECTION 16 (Repealed by 101 of 2006) 16 Proof of returns
A return purporting to be made and signed by or on behalf of a person shall, unless the contrary is proved, be deemed to have been made and signed by him or with his authority. Part V - Collection and recovery of the charges SECTION 17 (Repealed by 101 of 2006) Due date of payment (1)
Charge on tobacco leaf sold, purchased or appropriated for manufacturing purposes during a period of 3 months ending on the last day of March, June, September or December in any year is due and payable upon the expiration of 21 days after that period.
(1A)
Additional charge under section 29 is due and payable on the date specified in the notice of assessment of the additional charge as the date on which the additional charge is due and payable.
SECTION 18 (Repealed by 101 of 2006) Unpaid charge (1)
If any of a charge which a person is liable to pay remains unpaid after the time by which the charge is due to be paid, the person is liable to pay the general interest charge (GIC) on the unpaid amount.
(2)
The person is liable to pay the GIC for each day in the period that:
(a) started at the beginning of the day by which the charge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(3)
However, if a broker is required to pay the charge under section 12, a person liable under section 11 for the same charge is only liable to pay the GIC on the unpaid amount of the charge if the Commissioner gives the person a notice of assessment in respect of the charge.
(4)
If a person has been given a notice under subsection (3), the person is liable to pay the GIC on the unpaid amount for each day in the period that:
(a) started at the beginning of the day specified in the notice as the day by which the charge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(5)
The amount of the GIC a person is liable to pay under this section is taken to be additional charge payable under this section.
(6)
In this section:
SECTION 19 (Repealed by 101 of 2006) Assessment of charge (1)
Where in any case the Commissioner is of the opinion that charge is payable by a person, the Commissioner may assess the amount of charge which, in his opinion, should be, or should have been, paid.
(2)
Where:
(a) a person makes default in furnishing a return;
(b) the Commissioner is not satisfied with the return furnished by a person;
(c) the Commissioner has reason to believe or suspect that a person has avoided payment of any charge; or
(d) a person, not being a person liable to make a return under section 13, is liable to pay charge;
(3)
As soon as conveniently may be after an assessment is made under this section, the Commissioner shall cause notice in writing of the assessment and charge or further charge payable in accordance with the assessment to be given to the person liable to pay the charge.
(4)
The amount of charge specified in the notice is payable on or before the date specified in the notice, together with any other amount which is payable in accordance with any other provisions of this Act.
(5)
The omission to give such a notice does not invalidate the assessment made by the Commissioner.
SECTION 20 (Repealed by 101 of 2006) 20 Evidence
The production of a notice of assessment or of a document under the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner, purporting to be a copy of a notice of assessment, is evidence of the due making of the assessment and that the amount and all the particulars of assessment are correct. SECTION 21A (Repealed by 101 of 2006) Reduction of charge upon amendment of assessment (1)
Where, by reason of an amendment of an assessment, a person's liability to charge is reduced, the amount by which the charge is so reduced shall be taken, for the purposes of section 18, never to have been payable.
(2)
In subsection (1), charge includes additional charge under section 29.
SECTION 22 (Repealed by 101 of 2006) Refunds of charge (1)
Subject to subsections (2) and (3), where the Commissioner finds in any case that charge has been overpaid by a person, the Commissioner shall:
(a) refund the amount of any charge overpaid; or
(b) apply the amount of any charge overpaid against any liability of the person to the Commonwealth, being a liability arising under, or by virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied.
(2)
Subsection (1) does not apply in relation to an amount of charge paid by a person unless the Commissioner is satisfied that the person has not recouped himself to the extent of that amount by deduction from the proceeds of tobacco leaf sold on behalf of another person or otherwise or, if he has sorecouped himself, that he has since repaid the amount to the person from whom he recouped himself.
(3)
Subsection (1) does not apply in relation to an amount of charge paid by a person unless he furnishes to the Commissioner such return or other information, certified in such manner as the Commissioner requires, as will enable the Commissioner to determine the amount of charge that has been overpaid.
(4)
In this section, unless the contrary intention appears, charge includes additional charge under section 18 or 29.
Part VI - Penalty charge SECTION 28A (Repealed by 101 of 2006) 28A Part to stop applying
This Part does not apply to a return, or information, relating to the year starting on 1 July 2000 or a later year.
Where a person refuses or fails to furnish, when and as required under or pursuant to this Act or the regulations to do so, a return, or any information, relating to tobacco leaf, the person is liable to pay, by way of penalty, additional charge equal to double the amount of charge payable by the person in respect of the tobacco leaf.
(2)
Where:
(a) a person:
(b) the charge properly payable by the person exceeds the charge that would have been payable by the person if it were assessed or determined on the basis that the statement were not false or misleading, as the case may be;
(3)
Where, but for this subsection, an amount of additional charge, being an amount less than $20, is payable by a person under this section in respect of an act or omission, then, by force of this subsection, the amount of the additional charge shall be taken to be $20.
(4)
The Commissioner shall make an assessment of the additional charge payable by a person under this section and shall, as soon as practicable after the assessment is made, cause notice in writing of the assessment to be given to the person.
(5)
Nothing in this Act shall be taken to preclude notice of an assessment made in respect of a person under subsection (4) from being incorporated in notice of any other assessment made in respect of the person under this Act.
(6)
The Commissioner may, in the Commissioner's discretion, remit the whole or any part of the additional charge payable by a person under this section, but, for the purposes of the application of subsection 33(1) of the Acts Interpretation Act 1901 to the power of remission conferred by this subsection, nothing in this Act shall be taken to preclude the exercise of the power at a time before an assessment is made under subsection (4) of the additional charge.
(7)
A reference in subsection (2) to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes a statement:
(a) made in an application, certificate, declaration, notification, objection, return or other document made, given or furnished, or purporting to be made, given or furnished, under or pursuant to this Act or the regulations;
(b) made in answer to a question asked of a person under or pursuant to this Act or the regulations;
(c) made in any information furnished, or purporting to be furnished, under or pursuant to this Act or the regulations; or
(d) made in a document furnished to a taxation officer otherwise than under or pursuant to this Act or the regulations;
(8)
A reference in subsection (2) to a statement made to a person other than a taxation officer for a purpose in connection with the operation of this Act or the regulations is a reference to such a statement made orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes such a statement:
(a) made in an application, certificate, declaration, notification or other document made, given or furnished to the person;
(b) made in answer to a question asked by the person; or
(c) made in any information furnished to the person.
(9)
In this section:
Part VII - Miscellaneous SECTION 40 (Repealed by 101 of 2006) Public officer of company (1)
A company which carries on business as a grower, broker or manufacturer shall at all times be represented for the purposes of this Act by a public officer duly appointed by the company or by its duly authorized agent or attorney.
(1A)
A person is not capable of being a public officer of a company unless the person:
(a) is a natural person who has attained the age of 18 years;
(b) is ordinarily resident in Australia; and
(c) is capable of understanding the nature of the person's appointment as the public officer of the company.
(2)
The company shall appoint a public officer within 3 months after the commencement of this Act or after the company commences to carry on business as a grower, broker or manufacturer, as the case may be, whichever is the later, and shall keep the office of the public officer constantly filled.
(2A)
A company that contravenes subsection (2) is, in respect of each day on which it contravenes that subsection (including the day of a conviction of an offence against this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding $50.
(2B)
An offence under subsection (2A) is an offence of strict liability.
(3)
The appointment of a public officer shall be deemed not to be duly made until after notice in writing of the appointment, specifying the name of the officer and an address for service upon him, has been given to the Commissioner.
(4)
Service of a document at the address for service, or on the public officer of the company, is sufficient service upon the company for all the purposes of this Act or the regulations, and if at any time there is no public officer then service upon any person acting or appearing to act in the business of the company is sufficient.
(5)
The public officer is answerable for the doing of all things which are required to be done by the company under this Act or the regulations, and in case of default is liable to the same penalties.
(6)
Everything done by the public officer which he is required to do in his representative capacity shall be deemed to have been done by the company.
(7)
The absence or non-appointment of a public officer does not excuse the company from the necessity of complying with any of the provisions of this Act or the regulations, or from a penalty for refusal or failure to comply with such a provision, but the company is liable to comply with the provisions of this Act as if there were no requirement to appoint a public officer.
(8)
A notice given to, or requisition made upon, the public officer shall be deemed to be given to or made upon the company.
(9)
Proceedings under this Act taken against the public officer shall be deemed to have been taken against the company, and the company is liable jointly with the public officer for any penalty imposed upon him.
(10)
Notwithstanding anything contained in this section, and without in any way limiting, altering or transferring the liability of the public officer of a company, every notice, process or proceeding which under this Act or the regulations may be given to, served upon or taken against the company or its public officer may, if the Commissioner thinks fit, be given to, served upon or taken against any director, secretary or other officer of the company, or any attorney or agent of the company, and that director, secretary, officer, attorney or agent has the same liability in respect of that notice, process or proceeding as the company or public officer would have had if it had been given to, served upon or taken against the company or public officer.
(11)
A reference in this section (other than in subsection (2)) to this Act or the regulations includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act or the regulations.
SECTION 41 (Repealed by 101 of 2006) Access to books etc. (1)
For the purposes of this Act, the Commissioner, or an officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers and may make extracts from or copies of any such books, documents or papers.
(2)
An officer is not entitled to enter or remain on or in any building or place under this section if, on being requested by the occupier of the building or place for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorised to exercise powers under this section.
(3)
The occupier of a building or place entered or proposed to be entered by the Commissioner, or by an officer, under subsection (1) shall provide the Commissioner or the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
SECTION 42 (Repealed by 101 of 2006) 42 Regulations
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular:
(a) providing for the making of refunds of charge for the purpose of relieving a manufacturer from payment of charge at a higher rate than that applicable under the Tobacco Charge Act (No. 1) 1955 where that manufacturer, having become liable to pay charge on tobacco leaf under the Tobacco Charge Act (No. 3) 1955, sells that tobacco leaf to another manufacturer; and
(b) prescribing penalties not exceeding a fine of $500 for offences against the regulations.
This Act may be cited as the Tobacco Charges Assessment Act 1955. SECTION 2 (Repealed by 101 of 2006) 2 Commencement
This Act shall come into operation on 1 January 1956. SECTION 4 (Repealed by 101 of 2006) Interpretation (1)
In this Act, unless the contrary intention appears:
Australian tobacco leaf
or
tobacco leaf
means tobacco leaf grown in Australia.
broker
means a broker engaged in the sale of tobacco leaf.
charge
means an amount of the charge imposed by the Tobacco Charge Act (No. 1) 1955, the Tobacco Charge Act (No. 2) 1955 or the Tobacco Charge Act (No. 3) 1955.
company
includes a body or association, corporate or unincorporate, other than a partnership.
Deputy Commissioner
means a Deputy Commissioner of Taxation.
general interest charge
means the charge worked out under Division 1 of Part IIA of the Taxation Administration Act 1953.
grower
means a person carrying on the business of tobacco-growing, and includes the legal personal representative of a deceased person who carried on that business.
liquidator
, in relation to a company, means the person required by law to carry out the winding-up of a company, whether appointed as liquidator or not.
manufacturer
means a person carrying on the business of manufacturing goods for smoking, being goods manufactured wholly or partly from tobacco leaf.
officer
means a person appointed or engaged under the Public Service Act 1999.
Second Commissioner
means a Second Commissioner of Taxation.
the Commissioner
means the Commissioner of Taxation.
(2)
For the purposes of this Act, a person shall be deemed to have sold tobacco leaf if, in the performance of a contract under which he has received, or is entitled to receive, valuable consideration, he supplies tobacco leaf the property in which passes, under the terms of the contract, to another person, and that other person shall be deemed to have purchased that tobacco leaf.
(3)
For the purposes of this Act, tobacco leaf grown by a manufacturer shall be deemed to be appropriated by him for manufacturing purposes if, and only if, it is placed in storage awaiting delivery to his factory for manufacture or, not having been so placed in storage, it is delivered to his factory for manufacture.
SECTION 5 (Repealed by 101 of 2006) Queensland Tobacco Leaf Marketing Board deemed to be broker (1)
In this section, the Tobacco Leaf Marketing Board means The Tobacco Leaf Marketing Board constituted under The Primary Producers' Organisation and Marketing Acts, 1926 to 1954, of the State of Queensland.
(2)
For the purposes of this Act:
(a) the Tobacco Leaf Marketing Board shall, in exercising the powers to sell tobacco leaf conferred on it by or under The Primary Producers' Organisation and Marketing Acts, 1926 to 1954, of the State of Queensland, be deemed to be a broker; and
(b) where that Board sells tobacco leaf that has been divested from a grower by or under those Acts, the grower shall be deemed to own that tobacco leaf immediately before the sale and the sale shall be deemed to be made by the Board on behalf of the grower.
SECTION 6 (Repealed by 101 of 2006) 6 Application of Act
This Act applies to and in relation to the assessment and collection of the charges imposed by the Tobacco Charge Act (No. 1) 1955, the Tobacco Charge Act (No. 2) 1955 and the Tobacco Charge Act (No. 3) 1955. SECTION 7A (Repealed by 101 of 2006) 7A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II - Administration SECTION 7 (Repealed by 101 of 2006) 7 CommissionerThe Commissioner has the general administration of this Act. SECTION 9A (Repealed by 101 of 2006) Annual report (1)
The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act, including any breaches or evasions of this Act of which the Commissioner has notice.
(2)
The Minister shall cause a copy of a report furnished to him under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which he receives the report.
(3)
For the purposes of section 34C of the Acts Interpretation Act 1901, a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.
SECTION 10 (Repealed by 101 of 2006) Secrecy (1)
In this section, officer means a person who is or has been appointed or employed by the Commonwealth and, by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of another person, disclosed or obtained under this Act.
(1A)
For the purposes of this section, a person who, although not appointed or employed by the Commonwealth, performs services for the Commonwealth shall be taken to be employed by the Commonwealth.
(2)
Subject to this section, an officer shall not, either directly or indirectly, either while he is, or after he ceases to be, an officer, make a record of, or divulge or communicate to another person, any information respecting the affairs of another person acquired by the officer as mentioned in subsection (1).
(2A)
Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
(3)
An officer shall not be required to produce in a court a return, assessment or notice of assessment made or given for the purposes of this Act, or to divulge or communicate to a court a matter or thing coming under his notice in the performance of his duties as an officer, except when it is necessary for him to do so for the purpose of carrying this Act into effect.
(4)
Nothing in this section prohibits the Commissioner, a Second Commissioner or a Deputy Commissioner, or a person authorized to do so by the Commissioner, a Second Commissioner or a Deputy Commissioner, from communicating information to:
(a) a person performing, in pursuance of an appointment or employment by the Commonwealth, any duty arising under an Act administered by the Commissioner, for the purpose of enabling that person to carry out that duty;
(b) a board exercising a function under an Act administered by the Commissioner, or a member of such a board;
(d) the Australian Statistician;
(e) the Secretary to the Department of Primary Industry; or
(f) the Comptroller-General of Customs.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code.
(5)
A person to whom information is communicated under subsection (4), and a person or employee under his control is, in respect of that information, subject to the same rights, privileges, obligations and liabilities, under subsections (2) and (3), as if he were an officer.
(6)
An officer shall, if and when required by the Commissioner to do so, make an oath or declaration, in a manner and form approved by the Commissioner, to maintain secrecy in conformity with this section.
Penalty: $10,000 or imprisonment for 2 years, or both.
Part III - Liability to the charges SECTION 11 (Repealed by 101 of 2006) 11 Persons liable to pay the charges
Subject to section 12:
(a) charge imposed by the Tobacco Charge Act (No. 1) 1955 is payable by the person who owns the tobacco leaf immediately before it is sold;
(b) charge imposed by the Tobacco Charge Act (No. 2) 1955 is payable by the manufacturer by whom the tobacco leaf is purchased; and
(c) charge imposed by the Tobacco Charge Act (No. 3) 1955 is payable by the manufacturer by whom the tobacco leaf is grown. SECTION 12 (Repealed by 101 of 2006) Brokers (1)
Where a broker sells tobacco leaf on behalf of another person to a manufacturer, the broker shall pay to the Commissioner the charge (if any) imposed by the Tobacco Charge Act (No. 1) 1955 on that tobacco leaf by reason of the sale.
(2)
Where a manufacturer purchases tobacco leaf from a broker, the broker may, by agreement with that manufacturer, pay to the Commissioner the charge (if any) imposed by the Tobacco Charge Act (No. 2) 1955 on that tobacco leaf by reason of the purchase.
(3)
Where charge payable under the Tobacco Charge Act (No. 1) 1955 or the Tobacco Charge Act (No. 2) 1955 has been paid to the Commissioner by a person, or has been recovered by the Commissioner from a person, the liability of another person to pay that charge to the Commissioner is, by force of this subsection, discharged to the extent of the amount so paid or recovered.
(4)
Where an amount of charge which a broker is required to pay under this section has been paid by, or recovered by the Commissioner from, the broker, the broker may recover the amount so paid or recovered from the person liable under section 11 to pay the charge.
(5)
Where a broker sells tobacco leaf on behalf of another person to a manufacturer, the broker may, for the purpose of payment of charge imposed by the Tobacco Charge Act (No. 1) 1955, retain so much of an amount payable to a person in respect of that tobacco leaf as is equal to the amount of charge on that tobacco leaf.
(6)
In subsections (4) and (5), charge does not include additional charge payable under this Act.
Part IV - Returns SECTION 13 (Repealed by 101 of 2006) 13 Returns
For the purposes of this Act:
(a) a broker who, during a period of 3 months ending on the last day of March, June, September or December in any year, sells tobacco leaf on behalf of another person to a manufacturer; and
(b) a person, other than a broker, who is liable to pay charge by reason of:
(i) a sale or purchase of tobacco leaf during such a period, not being a sale or purchase made through a broker; or
(ii) the appropriation, during such a period, of tobacco leaf for manufacturing purposes;
shall, not later than 21 days after the end of that period, furnish to the Commissioner, in a form approved by the Commissioner, a return showing particulars of all such sales, purchases or appropriations made by him during that period.
SECTION 14 (Repealed by 101 of 2006) 14 Further returnsIn addition to any return that is required under section 13, the Commissioner may, by notice in writing, call upon a person to furnish to him, within a time specified in the notice, such return, or such further or fuller return, as the Commissioner requires. SECTION 15 (Repealed by 101 of 2006) Commissioner to obtain information and evidence (1)
For the purpose of inquiring into or ascertaining the liability of a person under this Act, the Commissioner may, by notice in writing, require a person:
(a) to furnish him with such information as he requires; or
(b) to attend and give evidence before him or before an officer authorized by him to receive the evidence;
and may require that person to produce all books, documents and other papers in his custody or under his control relevant to that purpose.
(2)
Subject to subsection (3), the Commissioner may require the information or evidence to be furnished or given on oath, and either orally or in writing, and for that purpose he or the officer so authorized by him may administer an oath.
(3)
Where a person required under this section to furnish information or give evidence on oath conscientiously objects to take an oath, he may make an affirmation instead of taking an oath.
(4)
The regulations may prescribe scales of expenses to be allowed to persons required under this section to attend before the Commissioner or an officer.
SECTION 16 (Repealed by 101 of 2006) 16 Proof of returns
A return purporting to be made and signed by or on behalf of a person shall, unless the contrary is proved, be deemed to have been made and signed by him or with his authority. Part V - Collection and recovery of the charges SECTION 17 (Repealed by 101 of 2006) Due date of payment (1)
Charge on tobacco leaf sold, purchased or appropriated for manufacturing purposes during a period of 3 months ending on the last day of March, June, September or December in any year is due and payable upon the expiration of 21 days after that period.
(1A)
Additional charge under section 29 is due and payable on the date specified in the notice of assessment of the additional charge as the date on which the additional charge is due and payable.
Note:
For provisions about collection and recovery of charge and additional charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
SECTION 18 (Repealed by 101 of 2006) Unpaid charge (1)
If any of a charge which a person is liable to pay remains unpaid after the time by which the charge is due to be paid, the person is liable to pay the general interest charge (GIC) on the unpaid amount.
Note 1:
The GIC is worked out under Division 1 of Part IIA of the Taxation Administration Act 1953.
Note 2:
If a broker is also liable under section 12 to pay the charge, the person is only liable to pay the GIC in certain circumstances: see subsection (3).
(2)
The person is liable to pay the GIC for each day in the period that:
(a) started at the beginning of the day by which the charge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the charge;
(ii) GIC on any of the charge.
(3)
However, if a broker is required to pay the charge under section 12, a person liable under section 11 for the same charge is only liable to pay the GIC on the unpaid amount of the charge if the Commissioner gives the person a notice of assessment in respect of the charge.
(4)
If a person has been given a notice under subsection (3), the person is liable to pay the GIC on the unpaid amount for each day in the period that:
(a) started at the beginning of the day specified in the notice as the day by which the charge was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the charge;
(ii) GIC on any of the charge.
(5)
The amount of the GIC a person is liable to pay under this section is taken to be additional charge payable under this section.
(6)
In this section:
charge
includes additional charge under section 29.
SECTION 19 (Repealed by 101 of 2006) Assessment of charge (1)
Where in any case the Commissioner is of the opinion that charge is payable by a person, the Commissioner may assess the amount of charge which, in his opinion, should be, or should have been, paid.
(2)
Where:
(a) a person makes default in furnishing a return;
(b) the Commissioner is not satisfied with the return furnished by a person;
(c) the Commissioner has reason to believe or suspect that a person has avoided payment of any charge; or
(d) a person, not being a person liable to make a return under section 13, is liable to pay charge;
the Commissioner may cause an assessment to be made of the charge which, in his judgment, ought to be levied and that person is liable to charge accordingly, except in so far as he establishes that the assessment is excessive.
(3)
As soon as conveniently may be after an assessment is made under this section, the Commissioner shall cause notice in writing of the assessment and charge or further charge payable in accordance with the assessment to be given to the person liable to pay the charge.
(4)
The amount of charge specified in the notice is payable on or before the date specified in the notice, together with any other amount which is payable in accordance with any other provisions of this Act.
(5)
The omission to give such a notice does not invalidate the assessment made by the Commissioner.
SECTION 20 (Repealed by 101 of 2006) 20 Evidence
The production of a notice of assessment or of a document under the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner, purporting to be a copy of a notice of assessment, is evidence of the due making of the assessment and that the amount and all the particulars of assessment are correct. SECTION 21A (Repealed by 101 of 2006) Reduction of charge upon amendment of assessment (1)
Where, by reason of an amendment of an assessment, a person's liability to charge is reduced, the amount by which the charge is so reduced shall be taken, for the purposes of section 18, never to have been payable.
(2)
In subsection (1), charge includes additional charge under section 29.
SECTION 22 (Repealed by 101 of 2006) Refunds of charge (1)
Subject to subsections (2) and (3), where the Commissioner finds in any case that charge has been overpaid by a person, the Commissioner shall:
(a) refund the amount of any charge overpaid; or
(b) apply the amount of any charge overpaid against any liability of the person to the Commonwealth, being a liability arising under, or by virtue of, an Act of which the Commissioner has the general administration, and refund any part of the amount that is not so applied.
(2)
Subsection (1) does not apply in relation to an amount of charge paid by a person unless the Commissioner is satisfied that the person has not recouped himself to the extent of that amount by deduction from the proceeds of tobacco leaf sold on behalf of another person or otherwise or, if he has sorecouped himself, that he has since repaid the amount to the person from whom he recouped himself.
(3)
Subsection (1) does not apply in relation to an amount of charge paid by a person unless he furnishes to the Commissioner such return or other information, certified in such manner as the Commissioner requires, as will enable the Commissioner to determine the amount of charge that has been overpaid.
(4)
In this section, unless the contrary intention appears, charge includes additional charge under section 18 or 29.
Part VI - Penalty charge SECTION 28A (Repealed by 101 of 2006) 28A Part to stop applying
This Part does not apply to a return, or information, relating to the year starting on 1 July 2000 or a later year.
Note:
See instead Division 284 in Schedule 1 to the Taxation Administration Act 1953.
SECTION 29 (Repealed by 101 of 2006) Penalty for failure to furnish return etc. (1)Where a person refuses or fails to furnish, when and as required under or pursuant to this Act or the regulations to do so, a return, or any information, relating to tobacco leaf, the person is liable to pay, by way of penalty, additional charge equal to double the amount of charge payable by the person in respect of the tobacco leaf.
(2)
Where:
(a) a person:
(i) makes a statement to a taxation officer, or to a person other than a taxation officer for a purpose in connection with the operation of this Act or the regulations, that is false or misleading in a material particular; or
(ii) omits from a statement made to a taxation officer, or to a person other than a taxation officer for a purpose in connection with the operation of this Act or the regulations, any matter or thing without which the statement is misleading in a material particular; and
(b) the charge properly payable by the person exceeds the charge that would have been payable by the person if it were assessed or determined on the basis that the statement were not false or misleading, as the case may be;
the person is liable to pay, by way of penalty, additional charge equal to double the amount of the excess.
(3)
Where, but for this subsection, an amount of additional charge, being an amount less than $20, is payable by a person under this section in respect of an act or omission, then, by force of this subsection, the amount of the additional charge shall be taken to be $20.
(4)
The Commissioner shall make an assessment of the additional charge payable by a person under this section and shall, as soon as practicable after the assessment is made, cause notice in writing of the assessment to be given to the person.
(5)
Nothing in this Act shall be taken to preclude notice of an assessment made in respect of a person under subsection (4) from being incorporated in notice of any other assessment made in respect of the person under this Act.
(6)
The Commissioner may, in the Commissioner's discretion, remit the whole or any part of the additional charge payable by a person under this section, but, for the purposes of the application of subsection 33(1) of the Acts Interpretation Act 1901 to the power of remission conferred by this subsection, nothing in this Act shall be taken to preclude the exercise of the power at a time before an assessment is made under subsection (4) of the additional charge.
(7)
A reference in subsection (2) to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes a statement:
(a) made in an application, certificate, declaration, notification, objection, return or other document made, given or furnished, or purporting to be made, given or furnished, under or pursuant to this Act or the regulations;
(b) made in answer to a question asked of a person under or pursuant to this Act or the regulations;
(c) made in any information furnished, or purporting to be furnished, under or pursuant to this Act or the regulations; or
(d) made in a document furnished to a taxation officer otherwise than under or pursuant to this Act or the regulations;
but does not include a statement made in a document produced pursuant to subsection 15(1).
(8)
A reference in subsection (2) to a statement made to a person other than a taxation officer for a purpose in connection with the operation of this Act or the regulations is a reference to such a statement made orally, in writing, in a data processing device or in any other form and, without limiting the generality of the foregoing, includes such a statement:
(a) made in an application, certificate, declaration, notification or other document made, given or furnished to the person;
(b) made in answer to a question asked by the person; or
(c) made in any information furnished to the person.
(9)
In this section:
data processing device
means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.
taxation officer
means a person exercising powers, or performing functions under, pursuant to or in relation to this Act or the regulations.
Part VII - Miscellaneous SECTION 40 (Repealed by 101 of 2006) Public officer of company (1)
A company which carries on business as a grower, broker or manufacturer shall at all times be represented for the purposes of this Act by a public officer duly appointed by the company or by its duly authorized agent or attorney.
(1A)
A person is not capable of being a public officer of a company unless the person:
(a) is a natural person who has attained the age of 18 years;
(b) is ordinarily resident in Australia; and
(c) is capable of understanding the nature of the person's appointment as the public officer of the company.
(2)
The company shall appoint a public officer within 3 months after the commencement of this Act or after the company commences to carry on business as a grower, broker or manufacturer, as the case may be, whichever is the later, and shall keep the office of the public officer constantly filled.
(2A)
A company that contravenes subsection (2) is, in respect of each day on which it contravenes that subsection (including the day of a conviction of an offence against this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding $50.
(2B)
An offence under subsection (2A) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
(3)
The appointment of a public officer shall be deemed not to be duly made until after notice in writing of the appointment, specifying the name of the officer and an address for service upon him, has been given to the Commissioner.
(4)
Service of a document at the address for service, or on the public officer of the company, is sufficient service upon the company for all the purposes of this Act or the regulations, and if at any time there is no public officer then service upon any person acting or appearing to act in the business of the company is sufficient.
(5)
The public officer is answerable for the doing of all things which are required to be done by the company under this Act or the regulations, and in case of default is liable to the same penalties.
(6)
Everything done by the public officer which he is required to do in his representative capacity shall be deemed to have been done by the company.
(7)
The absence or non-appointment of a public officer does not excuse the company from the necessity of complying with any of the provisions of this Act or the regulations, or from a penalty for refusal or failure to comply with such a provision, but the company is liable to comply with the provisions of this Act as if there were no requirement to appoint a public officer.
(8)
A notice given to, or requisition made upon, the public officer shall be deemed to be given to or made upon the company.
(9)
Proceedings under this Act taken against the public officer shall be deemed to have been taken against the company, and the company is liable jointly with the public officer for any penalty imposed upon him.
(10)
Notwithstanding anything contained in this section, and without in any way limiting, altering or transferring the liability of the public officer of a company, every notice, process or proceeding which under this Act or the regulations may be given to, served upon or taken against the company or its public officer may, if the Commissioner thinks fit, be given to, served upon or taken against any director, secretary or other officer of the company, or any attorney or agent of the company, and that director, secretary, officer, attorney or agent has the same liability in respect of that notice, process or proceeding as the company or public officer would have had if it had been given to, served upon or taken against the company or public officer.
(11)
A reference in this section (other than in subsection (2)) to this Act or the regulations includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act or the regulations.
SECTION 41 (Repealed by 101 of 2006) Access to books etc. (1)
For the purposes of this Act, the Commissioner, or an officer authorized by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers and may make extracts from or copies of any such books, documents or papers.
(2)
An officer is not entitled to enter or remain on or in any building or place under this section if, on being requested by the occupier of the building or place for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorised to exercise powers under this section.
(3)
The occupier of a building or place entered or proposed to be entered by the Commissioner, or by an officer, under subsection (1) shall provide the Commissioner or the officer with all reasonable facilities and assistance for the effective exercise of powers under this section.
Penalty for a contravention of this subsection: 30 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
SECTION 42 (Repealed by 101 of 2006) 42 Regulations
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular:
(a) providing for the making of refunds of charge for the purpose of relieving a manufacturer from payment of charge at a higher rate than that applicable under the Tobacco Charge Act (No. 1) 1955 where that manufacturer, having become liable to pay charge on tobacco leaf under the Tobacco Charge Act (No. 3) 1955, sells that tobacco leaf to another manufacturer; and
(b) prescribing penalties not exceeding a fine of $500 for offences against the regulations.