Excise Amendment (Compliance Improvement) Act 2000 (115 of 2000)

Schedule 1   Amendment of the Excise Act 1901

27   After Part III

Insert:

Part IV - Manufacturer, storage, producer and dealer licences

Division 1 - Applications for licences

39 Applications for licences

(1) An application for a licence may be made to the Collector.

(2) The application must:

(a) be in a form (if any) approved by the CEO; and

(b) set out the name and address of the applicant; and

(c) set out the name and address of each person whom the Collector is required to consider for the purposes of paragraphs 39A(2)(b), (c), (d), (e) and (f); and

(d) contain a description of the premises in relation to which the licence is sought; and

(e) set out such particulars of the matters that the Collector is required to consider for the purposes of sections 39A, 39B and 39C as will enable the Collector adequately to consider those matters; and

(f) in relation to an application for a manufacturer licence - be accompanied by the prescribed fee (if any); and

(g) contain such other information as is prescribed.

Division 2 - The granting of licences

39A It is in the Collector's discretion whether to grant licence

(1) The Collector may grant, or refuse to grant, a licence.

(2) Without limiting subsection (1) but subject to subsection (3), the Collector may refuse to grant a licence if, in the Collector's opinion:

(a) where the applicant is a natural person - the applicant is not a fit and proper person; or

(b) where the applicant is a partnership - any of the partners is not a fit and proper person; or

(c) where the applicant is a company - any director, officer or shareholder of the company who would participate in the management or control of the company is not a fit and proper person; or

(d) an employee of the applicant who would participate in the management or control of the premises in relation to which the licence is sought is not a fit and proper person; or

(e) where the applicant is a company - the company is not a fit and proper company; or

(f) the applicant is an associate (within the meaning of the Income Tax Assessment Act 1997) of a person who is not:

(i) a fit and proper person; or

(ii) a fit and proper company; or

(g) in relation to an application for a manufacturer licence or storage licence - the physical security of the premises in relation to which the licence is sought is not adequate having regard to:

(i) the nature of the premises; or

(ii) the kinds and quantity of goods that would be kept at the premises; or

(iii) the procedures and methods that would be adopted by the applicant to ensure the security of goods at the premises; or

(h) in relation to an application for a producer licence or dealer licence - the physical security of the storage place on the premises in relation to which the licence is sought is not adequate having regard to:

(i) the nature of the storage place; or

(ii) the quantity of tobacco leaf that would be kept at the storage place; or

(iii) the procedures and methods that would be adopted by the applicant to ensure the security of tobacco leaf at the storage place; or

(i) in relation to an application for a manufacturer licence or storage licence - the plant and equipment that would be used in relation to goods at the premises in relation to which the licence is sought are not suitable having regard to the nature of those goods and the premises; or

(j) the applicant would not be able to keep proper books of account or records to enable the CEO adequately to audit those books or records; or

(k) in relation to an application for a storage licence - the grant of the licence would delay liability for duty; or

(l) refusal to grant the licence is necessary to protect the revenue.

(3) If the application is for a producer licence or dealer licence, the Collector must not refuse to grant the licence under paragraph (2)(a), (b), (c), (d) or (f) unless the Collector is satisfied that it is necessary to refuse to grant the licence to protect the revenue.

39B Determining whether a natural person is fit and proper

The Collector may, in considering whether a natural person is a fit and proper person, have regard to:

(a) whether, within one year before making the application, the person has been charged with:

(i) an offence against a provision of the Excise Acts; or

(ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for a period of one year or longer or by a fine of 50 penalty units or more; and

(b) whether, within 10 years before making the application, the person was convicted of:

(i) an offence against a provision of the Excise Acts; or

(ii) an offence against a law of the Commonwealth, of a State or of a Territory that is punishable by imprisonment for a period of one year or longer or by a fine of 50 penalty units or more; and

(c) whether the person has:

(i) held a licence which has been cancelled; or

(ii) participated in the management or control of a company that has had its licence cancelled; and

(d) whether the person is an undischarged bankrupt; and

(e) any misleading statement made in the application by the person; and

(f) where any statement by the person in the application was false - whether the person knew that the statement was false.

39C Determining whether a company is fit and proper

The Collector may, in considering whether a company is a fit and proper company, have regard to:

(a) whether, within one year before making the application, the company has been charged with:

(i) an offence against a provision of the Excise Acts; or

(ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by a fine of 50 penalty units or more; and

(b) whether, within 10 years before making the application, the company was convicted of:

(i) an offence against a provision of the Excise Acts; or

(ii) an offence against a law of the Commonwealth, a State or a Territory that is punishable by a fine of 50 penalty units or more; and

(c) whether the company has held a licence that has been cancelled; and

(d) whether a receiver of the property, or part of the property, of the company has been appointed; and

(e) whether the company is under administration within the meaning of the Corporations Law; and

(f) whether the company has executed under Part 5.3A of that Law a deed of company arrangement that has not yet terminated; and

(g) whether the company has been placed under official management; and

(h) whether the company is being wound up.

Division 3 - Conditions and duration of licences

39D Conditions of licence

(1) A licence is subject to the condition that the licence holder must, within 30 days after one of the following matters occurs, give the Collector particulars in writing of the matter:

(a) one of the following persons is charged with an offence of the kind referred to in paragraph 39B(a):

(i) the licence holder;

(ii) where the licence holder is a partnership - a partner;

(iii) where the licence holder is a company - a person who participates in the management or control of the company;

(iv) a person who participates in the management or control of the premises specified in the licence;

(b) a person referred to in paragraph (a) of this subsection is convicted of an offence of the kind referred to in paragraph 39B(b) or becomes bankrupt;

(c) where the licence holder is a company - a person not described in the application for the licence as participating in the management or control of the company commences so to participate;

(d) a person not described in the application for the licence as participating in the management or control of the premises specified in the licence commences so to participate;

(e) where the licence holder is a partnership - there is a change in the membership of the partnership;

(f) where the licence holder is a company - any of the following events occurs:

(i) the company is charged with an offence of a kind referred to in paragraph 39C(a);

(ii) the company is convicted of an offence of a kind referred to in paragraph 39C(b);

(iii) a receiver of the property, or part of the property, of the company is appointed;

(iv) an administrator of the company is appointed under section 436A, 436B or 436C of the Corporations Law;

(v) the company executes a deed of company arrangement under Part 5.3A of that Law;

(vi) the company begins to be wound up;

(g) in relation to a manufacturer licence or storage licence - there is a substantial change in:

(i) a matter affecting the physical security of the premises specified in the licence; or

(ii) the plant or equipment used in relation to goods at the premises specified in the licence;

(h) in relation to a producer licence or dealer licence - there is a substantial change in a matter affecting the physical security of the storage place on the premises specified in the licence;

(i) in relation to a manufacturer licence - the licence holder has ceased to manufacture excisable goods;

(j) in relation to a storage licence - the licence holder has ceased to keep and store goods at the premises specified in the licence;

(k) in relation to a producer licence - the licence holder has ceased to produce tobacco seed, tobacco plant and tobacco leaf;

(l) in relation to a dealer licence - the licence holder has ceased to deal in tobacco seed, tobacco plant and tobacco leaf.

(2) A licence is subject to such other conditions (if any) as are prescribed.

(3) A licence is subject to such other conditions (if any) as are specified in the licence, being conditions considered by the Collector to be necessary or desirable for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.

(4) The Collector may, upon application by the licence holder and upon the production of the licence, vary the conditions specified in the licence by making an alteration to, or an endorsement on, the licence.

39E Duration of licences

(1) A manufacturer licence comes into force on the day the licence is granted and remains in force, unless cancelled earlier, until:

(a) 31 December (the expiry day ) after:

(i) the day of grant; or

(ii) the day of renewal or last renewal; or

(b) if an application for renewal has been made before the expiry day but the Collector has not made a decision whether to renew before the expiry day - such other day as the Collector determines in writing.

(2) A producer licence, dealer licence or storage licence comes into force on the day the licence is granted and remains in force unless it is cancelled.

39F Renewal of manufacturer licences

(1) The Collector may, by writing, renew a manufacturer licence on the written application of the licence holder.

(2) Where a manufacturer licence is renewed, the Collector may specify conditions different from those specified in the original licence.

(3) The Collector may refuse to renew the licence if the Collector is satisfied that, if the licence were renewed, he or she would be entitled to cancel the licence.

Division 4 - Suspension and cancellation of licences

39G When the Collector may suspend a licence

(1) Subject to subsection (2), the Collector may suspend a licence if the Collector has reasonable grounds for believing that:

(a) where the licence holder is a natural person - that person is not a fit and proper person; or

(b) where the licence holder is a partnership - any of the partners is not a fit and proper person; or

(c) where the licence holder is a company - a director, officer or shareholder of the company who participates in the management or control of the company is not a fit and proper person; or

(d) an employee of the licence holder who participates in the management or control of the premises specified in the licence is not a fit and proper person; or

(e) where the licence holder is a company - the company is not a fit and proper company; or

(f) the licence holder is an associate (within the meaning of the Income Tax Assessment Act 1997) of a person who is not:

(i) a fit and proper person; or

(ii) a fit and proper company; or

(g) in relation to a manufacturer licence or storage licence - the physical security of the premises specified in the licence is no longer adequate having regard to:

(i) the nature of the premises; or

(ii) the kinds and quantity of goods kept at the premises; or

(iii) the procedures and methods adopted to ensure the security of goods at the premises; or

(h) in relation to a producer licence or dealer licence - the physical security of the storage place on the premises specified in the licence is no longer adequate having regard to:

(i) the nature of the storage place; or

(ii) the quantity of tobacco leaf kept in the storage place; or

(iii) the procedures and methods adopted to ensure the security of tobacco leaf at the storage place; or

(i) in relation to a manufacturer licence or storage licence - the plant and equipment used at the premises specified in the licence are such that the protection of the revenue in relation to goods at the premises is inadequate; or

(j) the licence holder is not keeping proper books of account or records to enable the CEO adequately to audit those books or records; or

(k) a condition of the licence has been breached; or

(l) the licence holder has made a statement to the Collector that is false or misleading; or

(m) it is necessary for the protection of the revenue to suspend the licence; or

(n) in relation to a manufacturer licence or storage licence - it is necessary for the purpose of ensuring compliance with the Excise Acts to suspend the licence.

(2) If the licence is a producer licence or dealer licence, the Collector must not suspend the licence under paragraph (1)(a), (b), (c), (d) or (f) unless the Collector is satisfied that it is necessary to suspend the licence to protect the revenue.

39H Determining whether a natural person is fit and proper

The Collector may, in considering whether a natural person is a fit and proper person for the purposes of paragraphs 39G(1)(a), (b), (c), (d) and (f), have regard to:

(a) whether, within one year before the day of the Collector's consideration, the person has been charged with an offence of the kind referred to in paragraph 39B(a); and

(b) whether, within 10 years before the day of the Collector's consideration, the person has been convicted of an offence of the kind referred to in paragraph 39B(b); and

(c) whether the person is an undischarged bankrupt; and

(d) whether, within 10 years before the day of the Collector's consideration, the person has:

(i) held another licence which has been cancelled; or

(ii) has participated in the management or control of a company that has had its licence cancelled.

39I Determining whether a company is fit and proper

The Collector may, in considering whether a company is a fit and proper company for the purposes of paragraphs 39G(1)(e) and (f), have regard to:

(a) whether, within one year before the day of the Collector's consideration, the company has been charged with an offence of the kind referred to in paragraph 39C(a); and

(b) whether, within 10 years before the day of the Collector's consideration, the company is convicted of an offence of the kind referred to in paragraph 39C(b); and

(c) the matters referred to in paragraphs 39C(d) to (h).

39J Method of suspension

(1) If the Collector decides to suspend a licence, the Collector must give a written notice in accordance with this section to the licence holder.

(2) The notice must be:

(a) served, either personally or by post, on the licence holder; or

(b) served personally on a person who, at the time of service, apparently participates in the management or control of the premises specified in the licence.

(3) The notice:

(a) must state that, if the licence holder wishes to prevent the cancellation of the licence, he or she may, within 7 days after the day on which the notice was served, give to the Collector at an address specified in the notice a written statement showing cause why the licence should not be cancelled; and

(b) may, if it appears to the Collector to be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts, state that the licence is suspended.

(4) If the notice states that the licence is suspended, then the licence is suspended on and from the service of the notice.

(5) If the licence is suspended, the Collector:

(a) may at any time revoke the suspension; and

(b) if the licence has not been cancelled within 28 days after the day on which the licence was suspended - must revoke the suspension.

39K Activities that are prohibited during suspension

(1) During a period in which a licence is suspended, the licence holder must not, without permission under subsection (6):

(a) for a manufacturer licence - intentionally manufacture goods that are excisable goods knowing, or being reckless as to whether, they are excisable goods; and

(b) for a storage licence - intentionally keep or store excisable goods at the premises specified in the licence knowing, or being reckless as to whether, they are excisable goods.

Penalty: 2 years imprisonment or the greater of:

(a) 500 penalty units; and

(b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(2) During a period in which a licence is suspended, the licence holder must not, without permission under subsection (6):

(a) for a producer licence - intentionally produce material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, it is tobacco seed, tobacco plant or tobacco leaf; and

(b) for a dealer licence - intentionally deal in material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, it is tobacco seed, tobacco plant or tobacco leaf.

Penalty:

(a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and

(b) for tobacco leaf - 2 years imprisonment or the greater of:

(i) 500 penalty units; and

(ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(3) During a period in which a manufacturer licence, producer licence or dealer licence is suspended, the licence holder must not, without permission under subsection (6), intentionally keep or store tobacco leaf knowing, or being reckless as to whether, it is tobacco leaf.

Penalty: 2 years imprisonment or the greater of:

(a) 500 penalty units; and

(b) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(4) During a period in which a licence is suspended, the licence holder must not, without permission under subsection (6):

(a) for a manufacturer licence - manufacture excisable goods; and

(b) for a storage licence - keep or store excisable goods at the premises specified in the licence; and

(c) for a producer licence - produce tobacco seed, tobacco plant or tobacco leaf; and

(d) for a dealer licence - deal in tobacco seed, tobacco plant or tobacco leaf; and

(e) for a manufacturer licence, producer licence or dealer licence - keep or store tobacco leaf.

Penalty: 100 penalty units.

(5) Strict liability applies to subsection (4).

(6) During a period in which the licence is suspended, the Collector may:

(a) give written permission for goods to be kept or stored at the premises specified in the licence; and

(b) give written permission for a process to be carried out at the premises specified in the licence; and

(c) give written permission for the movement of goods from the premises specified in the licence to another place; and

(d) by written notice, in a manner prescribed by the regulations, to the owner of goods at the premises specified in the licence, require him or her to remove the goods to another place approved by the Collector; and

(e) take such control of the premises specified in the licence and of any goods at the premises as may be necessary for the protection of the revenue or for ensuring compliance with the Excise Acts; and

(f) by written notice to the licence holder, require the holder to pay such costs incurred by the CEO as a result of the suspension.

(7) If an amount that the licence holder is required to pay in accordance with a notice under paragraph (6)(f) is not paid, that amount may be recovered as a debt due to the Commonwealth by action in a court of competent jurisdiction.

39L Cancellation of licences

(1) The Collector may cancel a licence if the Collector is entitled to suspend the licence under section 39G.

(2) The Collector must cancel a licence if the Collector:

(a) receives a written notice from the licence holder requesting the Collector to cancel the licence; and

(b) is satisfied that the licence holder has no tobacco seed, tobacco plant, tobacco leaf or excisable goods in his or her possession, custody or control.

(3) The Collector must cancel a licence under subsection (1) or (2) by written notice:

(a) served, either personally or by post, on the licence holder; or

(b) served personally on a person who, at the time of service, apparently participates in the management or control of the premises specified in the licence.

(4) If the Collector cancels the licence, the Collector must by written notice inform the owner of excisable goods at the premises specified in the licence:

(a) that the owner is required, within a time specified in the notice or any further time allowed by the Collector, to:

(i) pay to the Collector duty payable in respect of the goods at the premises; or

(ii) remove the goods at the premises to another place in accordance with permission obtained from the Collector; and

(b) that, if the owner does not comply with the requirements of the notice, the goods will be sold or otherwise disposed of.

(5) The notice under subsection (4) must be:

(a) served, either personally or by post, on the owner of the goods; or

(b) served personally on a person who, at the time of the cancellation of the licence, apparently participated in the management or control of the premises specified in the licence.

(6) If the owner of goods to which a notice under subsection (4) applies fails to comply with the requirements of the notice within the time specified in the notice or any further time allowed by the Collector, the Collector may sell, or otherwise dispose of, the goods.

(7) If the licence of a person is cancelled, the person must surrender the licence to the Collector if requested by the Collector to do so.

Penalty: 1 penalty unit.

(8) Strict liability applies to subsection (7).

Division 5 - Dealing with goods after cancellation etc.

39M Removal of goods on cancellation etc. of licence

(1) If a licence has been cancelled, or has expired and has not been renewed, a person must not, without permission, intentionally remove from the premises that were specified in the licence any excisable goods on which duty has not been paid knowing, or being reckless as to whether, the goods are excisable goods on which duty has not been paid.

Penalty: 2 years imprisonment or the greater of:

(a) 500 penalty units; and

(b) 5 times the amount of duty that would be payable if the goods had been entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(2) If a licence has been cancelled, or has expired and has not been renewed, a person must not, without permission, intentionally remove from the premises that were specified in the licence material that is tobacco seed, tobacco plant or tobacco leaf knowing, or being reckless as to whether, the material is tobacco seed, tobacco plant or tobacco leaf.

Penalty:

(a) for tobacco seed or tobacco plant - 2 years imprisonment or 500 penalty units; and

(b) for tobacco leaf - 2 years imprisonment or the greater of:

(i) 500 penalty units; and

(ii) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(3) If a licence has been cancelled, or has expired and has not been renewed, a person must not, without permission, remove from the premises that were specified in the licence:

(a) any excisable goods the duty on which has not been paid; or

(b) any tobacco seed, tobacco plant or tobacco leaf.

Penalty: 100 penalty units.

(4) Strict liability applies to subsection (3).

39N Removal of goods by Collector on cancellation etc. of licence

(1) If a licence has been cancelled, or has expired and has not been renewed, the Collector may cause:

(a) any excisable goods on which duty has not been paid that are at the premises specified in the licence; and

(b) any packages in which the goods are contained;

to be removed to such other place as the Collector thinks fit.

(2) The Collector may sell or otherwise dispose of the goods if after 6 months after removing the goods under subsection (1):

(a) they are not claimed, in writing, by their owner; or

(b) the duty, expenses of removal, storage rent and other storage charges (if any) on or in respect of them have not been paid.

(3) The duty to be paid on the excisable goods claimed under subsection (2) is to be calculated at the rate in force at the time when the duty is paid.

(4) This section does not apply to licences to which section 77E applies.

Division 6 - Miscellaneous

39O Death of licence holder

If a licence holder dies, the licence is taken to be transferred to the person's legal personal representative. However, the licence is taken to be automatically cancelled at the end of the 3 months after the day on which the person dies.

39P Service of notices

For the purpose of the application of section 29 of the Acts Interpretation Act 1901 to the service by post of a notice under this Part on a person who holds or held a licence, such a notice posted as a letter addressed to the person at the address of the premises specified in the licence is taken to be properly addressed.

39Q Review of decisions

A person or partnership who is dissatisfied with a decision of the Collector under this Part may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.

39R Spent convictions scheme

Nothing in this Part affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that relieve persons in certain circumstances from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).

Part IVA - Control of tobacco seed, plant and leaf

44 Permission to move tobacco leaf

(1) The Collector may give written permission to a person specified in the permission to move tobacco leaf from a place specified in the permission to another place so specified.

(2) It is a requirement of the permission that a tobacco bale label must be affixed to the tobacco leaf at all times when the tobacco leaf is not at premises specified in a manufacturer licence, producer licence or dealer licence, unless the Collector has given additional written permission that it need not have a tobacco bale label.

(3) Permission under subsection (1) or (2) may be given subject to the condition that the person to whom the permission is given complies with such requirements as are specified in the permission, being requirements that, in the opinion of the Collector, are necessary for the protection of the revenue or for the purpose of ensuring compliance with the Excise Acts.

(4) A person to whom permission has been given under this section must not intentionally act or fail to act knowing, or being reckless as to whether, the act or omission contravenes a requirement under subsection (2) or specified in the permission under subsection (3).

Penalty: 2 years imprisonment or the greater of:

(a) 500 penalty units; and

(b) 5 times the amount of duty, worked out under the regulations, being the duty that would be payable if the tobacco leaf had been manufactured into excisable goods and entered for home consumption on the penalty day.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(5) A person must not fail to comply with a requirement under subsection (2) or specified in the permission under subsection (3).

Penalty: 100 penalty units.

(6) Strict liability applies to subsection (5).


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