Treasury Laws Amendment (Illicit Tobacco Offences) Act 2018 (82 of 2018)

Schedule 1   Amendments

Part 1   Offences

Taxation Administration Act 1953

4   After Division 290 in Schedule 1

Insert:

Division 295 - Miscellaneous civil penalties

Table of Subdivisions

295-B Civil penalty for possession of tobacco without relevant documentation

Subdivision 295-B - Civil penalty for possession of tobacco without relevant documentation

Guide to Subdivision 295-B

295-70 What this Subdivision is about

A person is liable to a civil penalty if the person possesses 2 kilograms or more of tobacco and the person:

(a) does not provide certain documents (such as a tax invoice) indicating how the person obtained the tobacco; or

(b) has stated that the possession was engaged in on behalf of or at the request of another person, but does not provide information enabling the other person to be identified and located.

However, the person will not be liable to the civil penalty in certain circumstances, such as where:

(a) the person is an individual, and possesses the tobacco for his or her personal use; or

(b) the person has reasonable grounds to suspect that excise duty or customs duty has been paid on the tobacco, or excise duty and customs duty is not payable on the tobacco.

Table of sections

295-75 Possession of tobacco without relevant documentation etc.

295-80 Things treated as tobacco

295-75 Possession of tobacco without relevant documentation etc.

(1) A person contravenes this subsection if:

(a) the person possesses a thing; and

(b) the thing is tobacco; and

(c) the place in which the person possesses the tobacco is in Australia but not in an external Territory; and

(d) the condition in subsection (2) is satisfied; and

(e) the weight of the tobacco equals or exceeds 2 kilograms.

(2) For the purposes of paragraph (1)(d), the condition in this subsection is satisfied if:

(a) the person has not provided any of the following:

(i) a *tax invoice indicating how the person obtained the tobacco;

(ii) a bill of lading indicating how the person obtained the tobacco;

(iii) a customs declaration indicating how the person obtained the tobacco; or

(b) the person:

(i) has stated that the possession was engaged in on behalf of or at the request of another person; and

(ii) has not provided information enabling the other person to be identified and located.

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Penalty: 100 penalty units.

(4) Section 308-510 applies to this section in the same way that it applies to Division 308.

(5) Subsection (1) does not apply if:

(a) the person is an individual; and

(b) the person possesses the tobacco for his or her personal use.

(6) Subsection (1) does not apply if the tobacco is kept or stored at premises specified in:

(a) a licence (within the meaning of the Excise Act 1901) that relates to tobacco; or

(b) a depot licence (within the meaning of the Customs Act 1901), or a warehouse licence (within the meaning of that Act), that relates to tobacco.

(7) Subsection (1) does not apply if:

(a) the person is specified in a movement permission under section 44 of the Excise Act 1901 in relation to tobacco; or

(b) the person is specified in a permission under section 71E of the Customs Act 1901 in relation to tobacco; or

(c) the person has an authority to take the tobacco into warehousing under subsection 71DJ(4) of the Customs Act 1901.

(8) Subsection (1) does not apply if:

(a) the person has permission (within the meaning of the Excise Act 1901):

(i) to possess the tobacco; or

(ii) to move the tobacco; or

(b) the tobacco is covered by an authority under section 55 of that Act; or

(c) the tobacco has been deemed to be entered for home consumption under subsection 61C(2) of that Act.

(9) Subsection (1) does not apply if:

(a) any of the following circumstances exist:

(i) *excise duty has been paid on the tobacco;

(ii) *customs duty has been paid on the tobacco;

(iii) excise duty is not payable on the tobacco because of an exemption under a law of the Commonwealth;

(iv) customs duty is not payable on the tobacco because of an exemption under a law of the Commonwealth; or

(b) the person has reasonable grounds to suspect that any of those circumstances exist.

(10) If person wishes to rely on subsection (5), (6), (7), (8) or (9) in civil penalty proceedings, the person bears an *evidential burden in relation to that matter.

295-80 Things treated as tobacco

(1) For the purposes of this Division, treat as tobacco any thing (including moisture) added to the tobacco leaf during manufacturing or processing.

(2) To avoid doubt, for the purposes of this Division:

(a) treat tobacco seed, tobacco plant (whether or not in the ground) and tobacco leaf as tobacco; and

(b) treat cigars, cigarettes and snuff as tobacco.