Excise guidelines for duty free shops

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11 OFFENCES

11.1 PURPOSE

11.2 INTRODUCTION

11.3 OFFENCES

11.4 PENALTIES

11.5 INFRINGEMENT NOTICES

11.6 APPLICATION OF THE CRIMINAL CODE

11.7 TERMS USED

11.8 LEGISLATION (quick reference guide)

11.8.1 Excise Act 1901

11.8.2 Crimes Act 1914

11.8.3 Criminal Code Act 1995

11.1 PURPOSE

This chapter deals with:

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

11.2 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.

11.3 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 intentionally or recklessly committed (i.e where there is a 'fault' element), and
• a lower penalty applies to the same act or omission on a strict liability basis (i.e. where no 'fault' element needs to be proven).

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).

11.4 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. [211] The penalty listed is thus the maximum penalty but the courts can impose a lesser penalty.

As indicated above certain offences provide for alternative penalties, for example subsection 33(1) of the Excise Act 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. [212]

Where an offence also causes goods to be forfeited, [213] conviction by the courts results in the forfeited goods being condemned. [214] This means they are no longer your property and we can dispose of the goods as we see fit.

11.5 INFRINGEMENT NOTICES

We may issue an infringement notice [215] as an alternative to prosecution for unlawfully possessing, or unlawfully selling excisable goods. [216] 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. [217]

In the event of non-payment, prosecution action may be brought against you.

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.

11.6 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. [218] In some courts, Excise prosecutions are able to be treated as criminal matters while in other courts they are treated as civil matters. This has an effect on issues such as the burden and standard of proof required.

11.7 TERMS USED

Penalty units

A penalty unit is specified in section 4AA of the Crimes Act 1914 and, at the time of writing, is $110.

11.8 LEGISLATION (quick reference guide)

In this chapter we have referred to the following legislation:

11.8.1 Excise Act 1901

Section 5 - Penalty at foot of sections

Section 6B - Application of the Criminal Code

Section 116 - Forfeiture

Section 117 - Unlawful possession of excisable goods

Section 117B - Unlawfully selling excisable goods

Section 127A - Alternative penalties

Section 128 - Penalties in addition to forfeitures

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

Section 129B - When an infringement notice may be issued

Section 129C - Matters to be included in an infringement notice

Section 129D - Due date for penalty

Section 129E - Effect of payment of penalty

Section 129F - Withdrawal of infringement notice

11.8.2 Crimes Act 1914

Section 4AA - Penalty units

Section 4D - Penalties

11.8.3 Criminal Code Act 1995

Section 6.1 - Strict liability

Chapter 2 - General principles of criminal responsibility

Copyright Commonwealth of Australia 2008 Published by: Australian Taxation Office The information in this publication is current at August 2008. We regularly revise our publications to take account of any changes to the law, so make sure that you have the latest information. If you are unsure, you can check for a more recent version on our website at www.ato.gov.au or contact us. Apart from any use as permitted under the Copyright Act 1968 , no part may be reproduced by any process without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be addressed to the Commonwealth Copyright Administration, Attorney General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or posted at http://www.ag.gov.au/cca