Tobacco Business Franchise Licences Act 1980
An Act to make provision for the issue of licences to be known as tobacco business franchise licences, to prohibit the sale of tobacco except by a person who is enfranchised to sell tobacco by such a licence, and to enact consequential or ancillary provisions
[Royal Assent 23 December 1980]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
This Act may be cited as the Tobacco Business Franchise Licences Act 1980 .
[Section 2 Subsection (1) amended by No. 53 of 1996, s. 4 ][Section 2 Subsection (5) amended by No. 53 of 1996, s. 4 ](1) [Section 2 Subsection (1) amended by No. 61 of 1989, s. 4 ]In this Act, except in so far as the context or subject-matter otherwise indicates or requires –associate has the meaning, in relation to a person, it would have under Division 2 of Part 1.2 of the Corporations Law as if –(a) for paragraphs (b) and (c) of section 12(1) of that Law , there were substituted –"or; and(b) whether the primary person is in a position to exercise certain powers in relation to a body corporate;"(b) sections 13 , 14 , 16(2) and 17 of that Law were repealed;consumption, in relation to tobacco, means the smoking or chewing of tobacco by any person;corporation has the same meaning as in section 9 of the Corporations Law ;corresponding law has the same meaning as in the Taxation (Reciprocal Powers) Act 1993 ;director, in relation to a corporation, has the same meaning as in section 9 of the Corporations Law ;distribution includes storage and transportation;functions includes duties;group wholesale tobacco merchant's licence means a group wholesale tobacco merchant's licence referred to in section 19 (1) and in force under this Act;inspector means an inspector referred to in section 12 ;police officer has the same meaning as in the Police Regulation Act 1898 ;powers includes authorities;premises includes any building or structure (including a building or structure that is of a temporary nature, or that is capable of being moved or transported) and also includes any vehicle, vessel, or aircraft;prescribed quantity, in relation to –(a) tobacco in the form of cigarettes, means 3 500 cigarettes or, if another amount is prescribed, that other amount; or(b) tobacco in any other form, means 5 kilograms or, if another amount is prescribed, that other amount;record includes book, account, deed, writing, or document and any other source of information compiled, recorded, or stored in written form, or on microfilm, or by electronic process, or in any other manner or by any other means;register means a register kept under section 23 ;Registrar means the Registrar of Tobacco Business Franchise Licences referred to in section 10 ;regulations means regulations under this Act;relevant period, in relation to a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence which, if issued, would expire at the end of a month specified in column 1 of Schedule 1 , means the month last past specified opposite that first-mentioned month in column 2 of that Schedule ;retail tobacconist's licence means a retail tobacconist's yearly licence;retail tobacconist's yearly licence means a licence referred to in section 19 (3) and in force under this Act;sell includes –(a) offer, display or expose for sale; and(b) keep or have in possession for sale; and(c) barter or exchange; and(d) agree to sell; and(e) supply, send, forward or deliver for sale; and(f) authorise, direct, cause, attempt or permit any act referred to in paragraphs (a) , (b) , (c) , (d) or (e) ;State Taxation Act has the same meaning as in the Taxation (Reciprocal Powers) Act 1993 ;tobacco means tobacco prepared for consumption, and includes any mixture that contains tobacco and is intended to be consumed;tobacco business franchise licence or licence means a wholesale tobacco merchant's licence, a group wholesale tobacco merchant's licence, or a retail tobacconist's licence issued and in force under this Act;tobacco retailing means the business of selling tobacco by retail in Tasmania either alone or in conjunction with any other merchandise, and includes that business carried on as part of or in conjunction with any other business;tobacco wholesaling means the business of selling tobacco for the purpose of resale either alone or in conjunction with any other merchandise, and includes that business carried on as part of or in conjunction with any other business;transportation record means a record in relation to the transportation of tobacco required to be completed or kept under section 14BA ;value, in relation to any tobacco sold, means the value attributable to that tobacco pursuant to section 21 ;vending machine means any machine, device, or contrivance that is constructed so as to containarticles that may be obtained therefrom by an operation that involves the insertion in the machine, device, or contrivance of a coin, token, or similar object;voting share, in relation to a body corporate, means an issued share in the body corporate, not being –(a) a share to which, in no circumstances, is there attached a right to vote; or(b) a share to which there is attached a right to vote only in one or more of the following circumstances:(i) during a period during which a dividend (or part of a dividend) in respect of the share is in arrear;(ii) on a proposal to reduce the share capital of the body corporate;(iii) on a proposal that affects rights attached to the share;(iv) on a proposal to wind up the body corporate;(v) on a proposal for the disposal of the whole of the property, business, and undertaking of the body corporate;(vi) during the winding up of the body corporate;wholesale tobacco merchant's licence means a wholesale tobacco merchant's licence referred to in section 19 (1) and in force under this Act.(2) The presence on any premises of a vending machine from which tobacco may be obtained shall be deemed to constitute the carrying on of tobacco retailing on those premises by the occupier, unless a person who is the holder of a retail tobacconist's licence is carrying on tobacco retailing by means of that machine in accordance with his licence.(3) [Section 2 Subsection (3) substituted by No. 61 of 1989, s. 4 ]A reference in this Act to the sale of tobacco is a reference to the sale of tobacco in Tasmania.(4) [Section 2 Subsection (4) substituted by No. 61 of 1989, s. 4 ]For the purposes of this Act –(a) a person who acts as an agent for another person who carries on tobacco wholesaling is deemed to carry on tobacco wholesaling; and(b) a person who acts as an agent for another person who carries on tobacco retailing is deemed to carry on tobacco retailing.(5) [Section 2 Subsection (5) amended by No. 61 of 1989, s. 4 ]Where pursuant to a sale made outside the State tobacco is delivered or contemplated to be delivered within the State, that sale shall, for the purposes of this Act, be deemed to have been made within the State.(6) A reference in this Act to tobacco includes a reference to any wrapping, package, or container in which the tobacco is sold, purchased, received, or handled.(7) [Section 2 Subsection (7) amended by No. 53 of 1996, s. 4 ]A reference in this Act to a holder of a group wholesale tobacco merchant's licence includes a reference to each person whose name is, under section 18E (2) (b) , endorsed on a group wholesale tobacco merchant's licence that is in force under this Act.(8) A reference in this Act to premises includes a part of the premises.(9) [Section 2 Subsection (9) omitted by No. 53 of 1996, s. 4 ]. . . . . . . .(10) [Section 2 Subsection (10) amended by No. 9 of 1982, s. 7 and Sched. 10 ]A reference in this Act to a corporation being related to another corporation is a reference to a corporation that is deemed, by virtue of section 7 (5) of the Companies (Tasmania) Code , to be related to that other corporation for the purposes of that Code.
3. Membership of a group of wholesale tobacco merchants
(1) For the purposes of this Act, a person is a member of a group of wholesale tobacco merchants if –(a) that person is one of the persons who constitute a group for the purposes of this Act; and(b) there is not in force a determination under subsection (2) or (3) by the Registrar that that person is not a member of the group.(2) The Registrar may, by writing under his hand, determine that a person who would, but for the determination, be a member of a group for the purposes of this Act is not a member of the group of wholesale tobacco merchants if he is satisfied that that person –(a) has continuously carried on tobacco wholesaling independently of the group;(b) will continue to carry on tobacco wholesaling independently of the group; and(c) is not subject to control by any other member of the group.(3) The Registrar may, by writing under his hand, determine that a person who would, but for the determination, be a member of a group for the purposes of this Act is not a member of any group for the purposes of this Act if he is satisfied that the person is not carrying on and has no intention of carrying on tobacco wholesaling.(4) A determination made under subsection (2) or (3) shall come into force at the time when it is made and shall continue in force until it is revoked by the Registrar and notice of the revocation has been served on the person in respect of whom the determination was made.(5) Notice of a determination under subsection (2) shall be given by the Registrar to the person in respect of whom the determination was made and to all the members of the group concerned whom he considers are carrying on tobacco wholesaling.(6) Notice of a determination under subsection (3) shall be published in the Gazette.(7) The Registrar may at any time revoke a determination made under subsection (2) or (3) .(8) Notice of the revocation of a determination made under subsection (2) or (3) shall be given by the Registrar to the person in respect of whom the determination was made and all members of the group in respect of which the determination was made who he considers are carrying on tobacco wholesaling.
For the purposes of this Act, corporations constitute a group if they are related to each other.
5. Grouping where employees used in another business
For the purposes of this Act, if –constitute a group.(a) an employee of an employer, or 2 or more employees of an employer, performs or perform duties solely or mainly for or in connection with a business carried on by that employer and another person or other persons or by another person or other persons; or(b) an employer has, in respect of the employment of, or the performance of duties by, one or more of his employees, an agreement, arrangement, or undertaking (whether formal or informal, whether expressed or implied, and whether or not the agreement, arrangement, or undertaking includes provisions in respect of the supply of goods or services or goods and services) with another person or other persons relating to a business carried on by that other person or those other persons, whether alone or together with another person or other persons –that employer and –(c) each such other person; or(d) both or all of those other persons –
6. Grouping of commonly controlled businesses
(1) A reference in this section to 2 businesses does not include a reference to 2 businesses both of which are owned by the same person, not being a trustee, or by the trustee or trustees of a trust.(2) For the purposes of this Act, where the same person has, or the same persons have together, a controlling interest, as referred to in subsection (3) , in each of 2 businesses, the persons who carry on those businesses constitute a group.(3) For the purposes of subsection (2) , the same person has, or the same persons have together, a controlling interest in each of 2 businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of the following paragraphs in the other business:(a) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation, if the directors, or a majority of the directors, or one or more of the directors, being a director or directors who is or are entitled to exercise a majority in voting power at meetings of the directors of the corporation, are or is accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions, or wishes of that person or of those persons acting together;(b) a person has, or persons have together, a controlling interest in a business, being a business carried on by a corporation that has a share capital, if that person or those persons acting together could (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, half or more than half of the voting power attached to voting shares issued by the corporation;(c) a person has, or persons have together, a controlling interest in a business, being a business carried on by a partnership, if that person or those persons –(i) owns, or own together, (whether beneficially or not) half or more than half of the capital of the partnership; or(ii) is, or are together, entitled (whether beneficially or not) to half or more than half of the profits of the partnership;(d) a person has, or persons have together, a controlling interest in a business, being a business carried on under a trust, if that person (whether or not as the trustee of another trust) is the beneficiary, or those persons (whether or not as the trustees of another trust) are together the beneficiaries, in respect of half or more than half of the value of the interests in the trust first mentioned in this paragraph;(e) a person has a controlling interest in a business if, whether or not he is a trustee of a trust, he is the sole owner of the business, or persons, being 2 or more trustees of a trust, have a controlling interest in a business if they are the owners of the business.(4) Where a corporation has a controlling interest under subsection (3) in a business, it shall be deemed to have a controlling interest in any other business in which another corporation that is related to it has a controlling interest.(5) Where –the person or persons referred to in paragraph (a) shall be deemed to have a controlling interest in that other business.(a) a person has, or persons have together, acontrolling interest under subsection (3) in a business; and(b) the person or persons who carry on that business has or have such a controlling interest in another business –(6) Where –in respect of half or more than half of the value of the interests in that trust and the trustee or trustees of that trust has or have under subsection (3) a controlling interest in a business, that beneficiary or those beneficiaries shall, for the purposes of subsection (3) , be deemed to have a controlling interest in that business.(a) a person is a beneficiary under a trust; or(b) 2 or more persons together are beneficiaries under a trust –
7. Smaller groups subsumed into larger groups
(1) Notwithstanding any other provision of this Act (except subsection (2) ), where a person is, whether or not by virtue of this subsection, a member of 2 or more groups (each of which is in subsection (2) referred to as a smaller group), all of the members of those groups constitute, for the purposes of this Act, one group.(2) Except for the purpose of determining whether a group is constituted under subsection (1) , a group which, but for this subsection, would be a smaller group ceases to be a group if its members are members of a group constituted under subsection (1) .
8. Beneficiaries under discretionary trusts
A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and any other person, may benefit under that trust shall be deemed, for the purposes of this Act, to be a beneficiary in respect of half or more than half of the value of the interests in that trust.
This Act binds the Crown not only in right of this State but also, so far as the legislative power of Parliament permits, binds the Crown in all of its other capacities.
PART II - Administration
10. Registrar of Tobacco Business Franchise Licences
[Section 10 Amended by No. 5 of 1990, s. 3 and Sched. 1 ](1) [Section 10 Subsection (1) substituted by No. 29 of 1984, s. 3 and Sched. 1 ]The Secretary of the Department may appoint a person employed in the Department, to be Registrar of Tobacco Business Franchise Licences for the purposes of this Act, and that employee may hold that office in conjunction with his position in the State Service.(2) [Section 10 Subsection (2) omitted by No. 29 of 1984, s. 3 and Sched. 1 ]. . . . . . . .(3) The Registrar may, from time to time, direct or authorise a person for the time being appointed under section 11 to perform or exercise the functions or powers of the Registrar under this Act, or such of those functions or powers as may be specified in the direction or authorization, and, where any such person is so directed or authorised, a reference in this Act to the Registrar includes a reference to that person.(4) No person shall be concerned to inquire whether a person directed or authorised under subsection (3) is entitled to perform or exercise the functions or powers of the Registrar under this Act.
11. Appointment or employment of persons for the purposes of this Act
[Section 11 Substituted by No. 29 of 1984, s. 3 and Sched. 1 ](1) Subject to and in accordance with the Tasmanian State Service Act 1984 , persons may be appointed or employed for the purposes of this Act.(2) [Section 11 Subsection (2) amended by No. 5 of 1990, s. 3 and Sched. 1 ]The Secretary of the Department may, by writing under his hand, appoint any assessor for the time being appointed under the Stamp Duties Act 1931 or any employee employed in the Department to be an officer for the purposes of this Act.(3) An employee appointed under subsection (2) may hold such office in conjunction with his position in the State Service.
[Section 12 Amended by No. 5 of 1990, s. 3 and Sched. 1 ](1) [Section 12 Subsection (1) substituted by No. 29 of 1984, s. 3 and Sched. 1 ]The Secretary of the Department may, by warrant under his hand, authorise any employee for the time being appointed as an officer or employee pursuant to section 11 to perform the duties of inspector for the purposes of this Act, and such employees may hold office as inspectors in conjunction with their positions in the State Service.(2) The Registrar shall be deemed to be an inspector and may exercise the powers conferred on inspectors by this Act.
13. Powers, &c., of inspectors
[Section 13 Subsection (3) amended by No. 43 of 1991, s. 5 and Sched. 1 ](1) [Section 13 Subsection (1) amended by No. 61 of 1989, s. 5 ]For the purposes of this Act, an inspector, on production of his warrant of authorization as such, may at any reasonable time and with such assistants as he considers necessary –(a) enter and remain in any premises which are, or which the inspector reasonably suspects are, used in connection with –(i) the processing, packaging, distribution, sale or purchase of tobacco; or(ii) the storage or custody of any record relating to the processing, packaging, distribution, sale or purchase of tobacco;(b) request any person –(i) to produce any record which relates to, or which the inspector reasonably suspects relates to, the processing, packaging, distribution, sale, or purchase of tobacco and which, at the time of the request, is in the possession or under the control of that person;(ii) to produce a statement, written in the English language, setting out the particulars contained in any such record that are not written or not written in the English language; and(iii) to answer any question with respect to any such record or statement or the processing, packaging, distribution, sale, or purchase of any tobacco; or(c) take and retain possession of any record or statement referred to in this subsection for such periods as is necessary to enable the record or statement to be inspected and copies of, or extracts from, the record or statement to be made or taken by or on behalf of the Registrar.(2) Whenever the Registrar exercises a power conferred by subsection (1) in his capacity as an inspector, it shall be sufficient for the purposes of that subsection if he produces evidence of his appointment as Registrar.(2A) [Section 13 Subsection (2A) inserted by No. 61 of 1989, s. 5 ]Where an inspector takes away any record or statement pursuant to subsection (1) (c) , the inspector shall –(a) give a receipt to the person from whom it is so taken; and(b) permit a person who would be entitled to inspect the record or statement if any of them were not in the possession of the inspector to inspect or take copies of any of them at any reasonable time.(3) [Section 13 Subsection (3) amended by No. 61 of 1989, s. 5 ]Any person who –is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units or to imprisonment for a term not exceeding 2 years, or both, and, in the case of an offence under paragraph (c) , to an additional fine not exceeding 2·5 penalty units for every day during which the offence continues.(a) prevents or attempts to prevent an inspector from exercising any power conferred on him by subsection (1) ;(b) hinders or obstructs, or fails to provide reasonable assistance to, an inspector in the exercise of any such power; or(c) fails to comply with a request of an inspector under subsection (1) (b) –(4) A person is not guilty of an offence under subsection (3) (c) by reason of his failure to answer any question referred to in subsection (1) (b) (iii) if he proves to the satisfaction of the court before which he is prosecuted for the offence that he did not know, and could not with reasonable diligence have ascertained, the answer to the question.(5) A person is not excused from answering any question if required to do so under subsection (1) (b) on the ground that the answer might tend to incriminate him or make him liable to a penalty, but the information provided by him shall not be admissible against him in any proceedings, civil or criminal, except in proceedings for an offence under subsection (3) or section 40 .(6) [Section 13 Subsection (6) amended by No. 9 of 1982, s. 7 and Sched. 10 ]Where an answer to a question referred to in subsection (1) (b) (iii) or any information whatever is given to an inspector by an officer of a corporation within the meaning of the Companies (Tasmania) Code which is carrying on or has carried on the business of selling tobacco, the answer and information are, for the purposes of any proceedings against the corporation under any of the provisions of this Act, binding on and admissible in evidence against the corporation, unless it is proved that the answer or information was given in relation to a matter in respect of which the officer had no authority to bind the corporation.(7) The provisions of subsection (6) are in addition to any rule of law relating to the binding effect and admissibility in evidence of statements made by any officer or employee of a corporation.
14. Special powers of Registrar with respect to dealings with tobacco
[Section 14 Amended by No. 53 of 1996, s. 5 ](1) In this section, a reference to dealing with tobacco includes a reference to processing, packaging, distributing, selling, and purchasing tobacco.(2) [Section 14 Subsection (2) substituted by No. 61 of 1989, s. 6 ]The Registrar may serve on any person an instrument in writing requiring that person to provide the Registrar, within such period as is specified in the instrument –(a) with a statement of such particulars relating to dealing with tobacco as may be specified; and(b) if the Registrar thinks fit, with a certificate signed by a person registered or qualified to be registered under the Companies (Tasmania) Code as a company auditor certifying that the statement is correct; and(c) records relating to the processing, packaging, distribution, sale or purchase of tobacco in the possession or under the control of that person.(2A) [Section 14 Subsection (2A) inserted by No. 61 of 1989, s. 6 ]The Registrar may require a person engaged in tobacco wholesaling to provide the Registrar with a statement at the end of each month of particulars relating to the sale of tobacco during that month.(2B) [Section 14 Subsection (2B) inserted by No. 53 of 1996, s. 5 ]The Registrar, by notice in writing served on a person, may require that person to attend and give evidence before the Registrar or before a person nominated by the Registrar and employed in the administration and execution of this Act and authorised by the Registrar.(3) [Section 14 Subsection (3) substituted by No. 61 of 1989, s. 6 ]Any person who fails to comply with a requirement made under subsection (2) or (2A) is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units.(4) A person is not guilty of an offence under subsection (3) if the court hearing the charge is satisfied –(a) that the defendant could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates; or(b) that the defendant complied with that requirement to the extent of his ability to do so.
14A. Registrar authorised to perform functions of a State taxation officer
The Registrar is authorised to perform the functions of a State taxation officer under Part IIIA of the Taxation Administration Act 1953 of the Commonwealth.
14B. Warrant to enter and search premises
[Section 14B Inserted by No. 61 of 1989, s. 7 ](1) If a magistrate is satisfied, on an application made by the Registrar, that there is reasonable ground for suspecting that there are in certain premises records or tobacco that are relevant to the assessment of any fee payable in respect of a licence, the magistrate may issue a warrant authorizing an inspector together with any other person named in the warrant –(a) to enter those premises by such force as may be necessary for the purpose; and(b) to search the premises and to break open and search anything in the premises in which records or tobacco may be stored or concealed; and(c) to take possession of, and secure against interference, any records or tobacco that appear to be relevant to the assessment of any fee payable in respect of a licence; and(d) to deliver any records or tobacco so taken into the possession of the Registrar.(2) Where a person delivers any records to the Registrar under this section, the Registrar –(a) may retain possession of the records for such period as is necessary to enable them to be inspected, and copies of, or extracts from, them to be made or taken by or on behalf of the Registrar; and(b) while any such record is in the possession of the Registrar, shall permit a person who would be entitled to inspect the record if it were not in the possession of the Registrar to inspect and take copies of the record at any reasonable time; and(c) after inspecting and making copies of or taking extracts from the records, shall return the records to the premises from which they were taken.(3) Where a person has a lien on records or tobacco to which this section applies, nothing done under this section in relation to the records or tobacco prejudices the lien.(4) A person shall not –(a) prevent or attempt to prevent any person acting or assisting in the execution of a warrant under subsection (1) ; or(b) hinder, obstruct or fail to provide reasonable assistance to, any person acting or assisting in the execution of such a warrant.Penalty: Fine not exceeding 100 penalty units.(5) Where a person takes possession of any records or tobacco under subsection (1) , that person shall give a receipt to the person from whom it was so taken.(6) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law.
[Section 14BA Inserted by No. 53 of 1996, s. 6 ](1) If a quantity of tobacco exceeding the prescribed quantity is to be transported in Tasmania, the person on whose behalf the tobacco is to be transported must complete a transportation record in respect of the tobacco and give the record to the carrier at or before the commencement of the transportation.Penalty: Fine not exceeding 20 penalty units.(2) The transportation record must be in a form approved by the Registrar and must contain –(a) the date on and address at which the transportation is to commence; and(b) the class and quantity of the tobacco; and(c) the name and address of the person on whose behalf the tobacco is to be transported; and(d) if the person on whose behalf the tobacco is to be transported is not the owner of the tobacco, the name and address of the owner; and(e) the name of the person (if any) to whom the carrier is to transport the tobacco; and(f) the address to which the carrier is to transport the tobacco; and(g) the name and address of the person (if any) who has agreed to purchase the tobacco.(3) At all times while a quantity of tobacco exceeding the prescribed quantity is in transit in Tasmania, the carrier must ensure that the transportation record relating to the tobacco is kept with the tobacco.Penalty: Fine not exceeding 20 penalty units.(4) In this section, transit, in relation to tobacco, means the period commencing at the time a carrier takes possession of the tobacco and ending at the time the carrier delivers the tobacco to its final destination.
14BB. Production of transportation record
[Section 14BB Inserted by No. 53 of 1996, s. 6 ](1) If an inspector reasonably suspects that a quantity of tobacco exceeding the prescribed quantity is being transported in a vehicle, vessel or aircraft, the inspector may request the driver of the vehicle or the person in charge of the vessel or aircraft to produce the transportation record relating to the tobacco for inspection.(2) The driver of the vehicle or person in charge of the vessel or aircraft must comply with a request under subsection (1) .Penalty: Fine not exceeding 100 penalty units.(3) For the purposes of subsection (1) , a police officer, at the request of an inspector, may request the driver of the vehicle to stop the vehicle or the person in charge of the vessel or aircraft to stop the vessel or aircraft.(4) If the driver of the vehicle does not produce a transportation record or produces a transportation record that the inspector is unable to verify, the inspector may request the driver to drive the vehicle to a police station or other place within a reasonable distance, as determined by the inspector, where the tobacco can be unloaded.(5) If the driver does not comply with a request under subsection (4) , a police officer, at the request of the inspector, may take charge of the vehicle for the purpose of driving it, or causing it to be driven, to the police station or other place.(6) As soon as practicable after arrival at the police station or other place, the inspector may cause the tobacco to be unloaded.(7) If the person in charge of the vessel or aircraft does not produce a transportation record or produces a transportation record that the inspector is unable to verify, the inspector may request the person in charge of the vessel or aircraft to unload any tobacco found on the vessel or aircraft.(8) If the person in charge of the vessel or aircraft does not comply with a request under subsection (7) , a police officer, at the request of the inspector, may take charge of the vessel or aircraft and may cause any tobacco found on the vessel or aircraft to be unloaded.
[Section 14C Inserted by No. 61 of 1989, s. 7 ](1) [Section 14C Subsection (1) substituted by No. 53 of 1996, s. 7 ]The Registrar may take and keep in custody any tobacco –(a) which the Registrar reasonably believes is evidence of an offence by any person; or(b) in respect of which the Registrar is unable to determine ownership.(2) [Section 14C Subsection (2) amended by No. 53 of 1996, s. 7 ]Where the Registrar takes and keeps any tobacco pursuant to subsection (1) (a) , the Registrar shall give a receipt to the person from whom it is taken.(3) [Section 14C Subsection (3) amended by No. 53 of 1996, s. 7 ]Where the Registrar takes and keeps in custody any tobacco pursuant to subsection (1) (a) , the Registrar shall, within 3 days of the taking, obtain an order from a magistrate to permit the Registrar to keep the tobacco until proceedings for the offence have been heard and dealt with.(4) [Section 14C Subsection (4) amended by No. 53 of 1996, s. 7 ]In deciding whether or not to grant an order referred to in subsection (3) , the magistrate shall take into account –(a) whether any hardship may be incurred by any person as a result of the Registrar taking and keeping tobacco pursuant to subsection (1) (a) ; and(b) any other factors the magistrate considers appropriate.(5) [Section 14C Subsection (5) amended by No. 53 of 1996, s. 7 ]Where the magistrate does not grant an order under subsection (3) , the Registrar shall, within 3 days of the decision not to grant the order, return any tobacco taken pursuant to subsection (1) (a) to the person from whom it was so taken.
14D. Realization of value of seized tobacco
[Section 14D Inserted by No. 61 of 1989, s. 7 ](1) [Section 14D Subsection (1) amended by No. 53 of 1996, s. 8 ]The Registrar may apply to a magistrate for an order to sell any tobacco taken and kept under section 14C (1) (a) .(2) The Registrar shall cause a copy of any application made under subsection (1) to be sent to any person whom the Registrar has reason to believe has an interest in the tobacco to which the application relates.(3) A person who has an interest in any tobacco which is the subject of an application for an order under this section, is entitled to appear and to present evidence at the hearing of the application.(4) [Section 14D Subsection (4) amended by No. 53 of 1996, s. 8 ]If, at the hearing of the application, evidence is given that the tobacco was in the possession of a person for sale in the course of carrying on tobacco retailing or tobacco wholesaling, the magistrate –(a) may, by order, direct the Registrar to sell the tobacco in such manner and subject to such directions as the magistrate may specify, and to pay the proceeds of sale into the court; or(b) at the request of any person appearing to the magistrate to have an interest in the tobacco, may –(i) fix the value of the person's interest in the tobacco for the purposes of an order under subparagraph (ii) ; and(ii) order the Registrar, on payment into the court by that person of an amount equal to the value of the interest so fixed, to deliver tobacco which has a value equal to that amount to that person.
[Section 14E Inserted by No. 61 of 1989, s. 7 ](1) The court may, by order, declare that tobacco or its value paid into the court under section 14D be forfeited to the Crown where in proceedings brought before it for an offence under this Act the court finds the offence proven.(1A) [Section 14E Subsection (1A) inserted by No. 53 of 1996, s. 9 ]If, within a period of 30 days from the day on which any tobacco is taken and kept under section 14C (1) (b) , a claim is not made in respect of the tobacco, the tobacco is forfeited to, and becomes the property of, the Crown.(2) [Section 14E Subsection (2) amended by No. 53 of 1996, s. 9 ]The Minister may, on behalf of the Crown, dispose of any tobacco forfeited under subsection (1) or (1A) in such manner as the Minister thinks fit.
[Section 14F Inserted by No. 61 of 1989, s. 7 ]Where in proceedings for an offence under this Act the court finds the offence not proven, the court may, by order, declare that –(a) any tobacco seized under section 14C be returned to the person from whom it was seized; or(b) any amount paid into the court by a person under section 14D be refunded to that person together with interest at a rate determined by the court.
15. Protection for Registrar, &c.
(1) Subject to subsection (2) , any matter or thing done by the Registrar, an inspector, or any other person in good faith for the purpose or purported purpose of administering or executing this Act shall not subject him personally to any action, liability, claim, or demand.(2) Subsection (1) does not preclude the Crown from being subject to any action, liability, claim, or demand to which the Crown would, but for that subsection, have been subject.
PART III - Licences
16. Offences relating to sale of tobacco
[Section 16 Amended by No. 53 of 1996, s. 10 ](1) [Section 16 Subsection (1) inserted by No. 53 of 1996, s. 10 ]On or after the commencement of the Tobacco Business Franchise Licences Amendment Act 1996 , a person must not carry on tobacco wholesaling unless that person is the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence.Penalty: Fine not exceeding 10 penalty units for every day on which the person carries on the business.(2) [Section 16 Subsection (2) amended by No. 61 of 1989, s. 8 ]On or after 1st February 1981, a person shall not carry on tobacco retailing unless he is the holder of a retail tobacconist's licence.Penalty: Fine not exceeding 5 penalty units for every day on which the person carries on the business.(3) [Section 16 Subsection (3) omitted by No. 61 of 1989, s. 8 ]. . . . . . . .(4) [Section 16 Subsection (4) substituted by No. 53 of 1996, s. 10 ]The holder of a licence issued under this Act must not carry on the business of selling or storing tobacco on premises that are not specified in the licence as premises to be used for that purpose.Penalty: Fine not exceeding 10 penalty units for every day on which the person carries on the business.(5) [Section 16 Subsection (5) amended by No. 61 of 1989, s. 8 ]Where tobacco wholesaling or tobacco retailing is carried out on any premises, the occupier of the premises shall be deemed to have sold the tobacco, unless it is established –(a) that the sale took place without his knowledge or connivance; and(b) that he took all such steps as are reasonable in the circumstances to prevent the sale being made.(6) [Section 16 Subsection (6) amended by No. 61 of 1989, s. 8 ]In any prosecution relating to a charge for an offence against subsection (2) , the defendant has a defence to that charge if he satisfies the court that, although he did not hold a licence authorizing him to carry on tobacco retailing, at a time alleged in the charge, he had, before that time, made an application for such a licence in accordance with this Act and tendered payment of the fee payable under section 20 in respect of such a licence and the Registrar had not refused to issue a licence of the kind applied for.(7) [Section 16 Subsection (7) added by No. 61 of 1989, s. 8 ]This section does not apply to a person who acts as an agent for another person who is carrying on tobacco retailing where that other person is the holder of a licence issued and in force under this Act.
16A. Sales to and purchases from unlicensed persons
[Section 16A Inserted by No. 53 of 1996, s. 11 ](1) The holder of a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence must not, in the course of tobacco wholesaling, sell tobacco to a person who is not the holder of a licence.Penalty: Fine not exceeding 50 penalty units.(2) The holder of a retail tobacconist's licence must not, in the course of tobacco retailing, purchase tobacco from a person who is not the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence.Penalty: Fine not exceeding 50 penalty units.(3) Subsections (1) and (2) do not apply to a sale or purchase of tobacco outside Tasmania in the course of tobacco wholesaling or tobacco retailing unless the terms (whether express or implied) of the sale or purchase or of any contract for the sale or purchase –(a) require either party to deliver, or arrange delivery of, the tobacco into or within Tasmania; or(b) contemplate delivery of the tobacco into or within Tasmania.(4) It is a defence to a prosecution under subsection (1) or (2) to prove that the defendant believed on reasonable grounds that the person making the sale or purchase was a holder of a licence at the time of the sale or purchase.
16B. Possession or control of tobacco
[Section 16B Inserted by No. 53 of 1996, s. 11 ](1) Subject to subsection (2) , a person other than the holder of a licence must not have in his or her custody, possession or control more than the prescribed quantity of tobacco.Penalty: Fine not exceeding 100 penalty units.(2) Subsection (1) does not apply if a person is able to prove to the satisfaction of the Registrar that the tobacco is in the custody, possession or control of that person as a result of that person –(a) purchasing the tobacco from the holder of a licence; or(b) storing the tobacco on behalf of the holder of a licence; or(c) being in possession of the tobacco pursuant to the person's duties as an agent or employee of the holder of a licence.
17. Applications for retail tobacconists' licences
[Section 17 Substituted by No. 53 of 1996, s. 12 ](1) Subject to this Act, a person may apply to the Registrar, in a form approved by the Registrar, for a retail tobacconist's licence.(2) If the Registrar is satisfied that the application is in order and that the applicant has complied with any requirement under section 14 in relation to the application and paid the licence fee as required under section 20 , the Registrar is to issue a licence to the applicant.(3) The holder of a retail tobacconist's licence who has –must, by notice in writing, notify the Registrar that he or she has done so.(a) ceased carrying on the business of tobacco retailing or has ceased to carry on that business on any premises; or(b) acquired additional premises on which to carry on that business –Penalty: Fine not exceeding one penalty unit.(4) The holder of a retail tobacconist's licence who has ceased carrying on the business of tobacco retailing must upon notifying the Registrar pursuant to subsection (3) surrender his or her licence to the Registrar.Penalty: Fine not exceeding one penalty unit.(5) The holder of a retail tobacconist's licence must, at any time before the expiry of the licence, apply to the Registrar for a licence for a further period of 12 months if the holder wishes to continue to undertake tobacco retailing.(6) A licence issued under this section may be subject to such terms and conditions the Registrar thinks fit.
18. Applications by new applicants for wholesale or group wholesale tobacco merchants' licences
[Section 18 Substituted by No. 53 of 1996, s. 12 ](1) A person who does not hold a wholesale tobacco merchant's licence (other than a person who is a member of a group of wholesale tobacco merchants) may apply to the Registrar, in accordance with this section, for a wholesale tobacco merchant's licence for the month that is the third month after the month in which the application is made.(2) A person who is a member of a group of wholesale tobacco merchants that does not hold a group wholesale tobacco merchant's licence may apply, on behalf of any or all of the members of the group, to the Registrar, in accordance with this section, for a group wholesale tobacco merchant's licence for the month that is the third month after the month in which the application is made.(3) An application under subsection (1) –(a) is to be in a form approved by the Registrar; and(b) is to contain –(i) a full and true disclosure of all the material facts known to the applicant and, if the applicant is a corporation, each director of the applicant, that are necessary to enable the Registrar to determine the application and ascertain the licence fee payable by the applicant; and(ii) if the applicant is a corporation, the name and address of each director of the applicant; and(iii) a statutory declaration made by the applicant verifying the information in the application; and(c) is to be accompanied by such application fee, if any, as may be prescribed.(4) An application under subsection (2) –(a) is to be in a form approved by the Registrar; and(b) is to name each member of the group on whose behalf the application is made; and(c) is to contain, in relation to the applicant and each member of the group on whose behalf the application is made –(i) a full and true disclosure of all the material facts known to the applicant or member and, if the applicant or member is a corporation, each director of the applicant or member, that are necessary to enable the Registrar to determine the application and ascertain the licence fee payable by the applicant; and(ii) if the applicant or member is a corporation, the name and address of each director of the applicant or member; and(iii) a statutory declaration made by the applicant verifying the information in the application; and(d) is to be accompanied by such application fee, if any, as may be prescribed.(5) If an applicant under this section is a corporation, the statutory declaration in the application may be made on behalf of the applicant by a director of the applicant.
18A. Matters to be considered in determining applications under section 18
[Section 18A Substituted by No. 53 of 1996, s. 12 ](1) The Registrar is not to grant an application under section 18 unless the Registrar is satisfied that –(a) the applicant is an Australian resident or, if the applicant is a corporation, the applicant is incorporated in a State or Territory; and(b) the applicant has, or is likely to have, access to sufficient financial resources to carry on tobacco wholesaling; and(c) the applicant has, or will have at the commencement of the licence, suitable facilities and equipment for safe storage and distribution of tobacco by the applicant; and(d) neither the applicant nor, if the applicant is a corporation, any director of the applicant has been convicted (within the period of 5 years immediately preceding the date of the application) of an offence under a State Taxation Act or a corresponding law punishable by a fine of $1 000 or more.(2) The Registrar may refuse an application under section 18 if the Registrar is satisfied that an applicant or an associate of the applicant –(a) held a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence under this Act at any time in the year preceding the month for which the licence is sought; or(b) has been refused, in any State or Territory, a licence to wholesale tobacco; or(c) has had, in any State or Territory, a licence to wholesale tobacco suspended or revoked.(3) In determining whether or not the Registrar is satisfied as required by subsection (1) , the Registrar may take into account –(a) whether the applicant has been convicted (within the period of 5 years immediately preceding the date of the application) of an offence under the law of Tasmania, the Commonwealth, any other State or any Territory punishable by a fine of $5 000 or more; and(b) if the applicant is a corporation, whether a director of the applicant has been convicted (within the period of 5 years immediately preceding the date of the application) of an offence under the law of Tasmania, the Commonwealth, any other State or any Territory punishable by a fine of $5 000 or more; and(c) the reports received under section 18B .(4) For the purposes of determining an application under section 18 (2) for a group wholesale tobacco merchant's licence, a reference in this section to the applicant includes a reference to each member of the group on whose behalf the application is made.
18B. Investigation of applications under section 18
[Section 18B Inserted by No. 53 of 1996, s. 12 ](1) On receiving an application under section 18 for a licence, the Registrar must cause to be carried out all investigations and inquiries that the Registrar considers necessary to enable the Registrar to consider the application properly.(2) The Registrar may request the Commissioner of Police to inquire into and report to the Registrar on any matter the Registrar requires relating to the application.(3) The Commissioner of Police must comply with the request of the Registrar within 30 days of receiving the request.(4) The Registrar may require the applicant, at the applicant's expense, to provide the Registrar with a report by a registered auditor –(a) on the financial affairs of the applicant; and(b) if the applicant is a corporation, on the financial affairs of any director of the applicant; and(c) in the case of an application for a group wholesale tobacco merchant's licence, on the financial affairs of any member of the group on whose behalf the application is made; and(d) if any member of the group referred to in paragraph (c) is a corporation, on the financial affairs of any director of the member.(5) In this section, registered auditor means an auditor registered under Part 9.2 of the Corporations Law .
18C. Applications by existing licensees for wholesale or group wholesale tobacco merchants' licences
[Section 18C Inserted by No. 53 of 1996, s. 12 ](1) A person who, in any month, holds a wholesale tobacco merchant's licence may apply to the Registrar, in accordance with this section, for a wholesale tobacco merchant's licence for the following month.(2) A person who, in any month, holds a group wholesale tobacco merchant's licence may apply, on behalf of any or all of the members of the group, to the Registrar, in accordance with this section, for a group wholesale tobacco merchant's licence for the following month.(3) An application under subsection (1) or (2) –(a) is to be made at least 7 days before the current licence expires; and(b) is to be in a form approved by the Registrar; and(c) is to contain –(i) a full and true disclosure of all the material facts known to the applicant that are necessary to enable the Registrar to ascertain the licence fee payable by the applicant; and(ii) if the applicant is a corporation, the name and address of each director of the applicant; and(iii) if the application is for a group wholesale tobacco merchant's licence, the name of each member of the group on whose behalf the application is made and, if a member is a corporation, the name and address of each director of that member; and(iv) a statutory declaration made by the applicant verifying the information in the application; and(v) a statement as to whether the applicant intends or does not intend to carry on tobacco wholesaling in the 2 months following the month for which the licence is sought.(4) If an applicant under this section is a corporation, the statutory declaration in the application may be made on behalf of the applicant by a director of the applicant.
18D. Matters to be considered in determining applications under section 18C
[Section 18D Inserted by No. 53 of 1996, s. 12 ](1) Subject to section 18E , the Registrar is to grant an application under section 18C unless the Registrar is satisfied –(a) that the holder of the licence has failed to provide information (whether in an application for the licence or otherwise) to the Registrar that the holder was required by this Act to provide, or has provided information that is false or misleading in any material particular; or(b) that the holder of the licence has otherwise contravened this Act; or(c) that the holder of the licence is not an Australian resident or, if the holder of the licence is a corporation, the holder is not incorporated in a State or Territory; or(d) that the holder of the licence does not have sufficient financial resources to carry on tobacco wholesaling for the whole of the month for which the licence is sought and for any subsequent period in respect of which the holder has stated, in an application under section 18C , an intention to carry on tobacco wholesaling; or(e) that the holder of the licence has been convicted (within the period of 5 years immediately preceding the date of the application) of an offence under a State Taxation Act or a corresponding law punishable by a fine of $1 000 or more; or(f) if the holder of the licence is a corporation, that a director of the holder has been convicted (within the period of 5 years immediately preceding the date of the application) of an offence under a State Taxation Act or a corresponding law punishable by a fine of $1 000 or more; or(g) that the holder of the licence does not have suitable facilities and equipment for safe storage and distribution of tobacco by the holder.(2) The Registrar may refuse an application under section 18C if the Registrar is satisfied that the holder of the licence –(a) has been refused, in any State or Territory, a licence to wholesale tobacco; or(b) has had, in any State or Territory, a licence to wholesale tobacco revoked.
18E. Grant of applications for wholesale and group wholesale tobacco merchants' licences
[Section 18E Inserted by No. 53 of 1996, s. 12 ](1) The Registrar must determine an application under section 18 or 18C for a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence by either granting or refusing the application and must notify the applicant in writing of the determination.(2) If the Registrar grants the application the Registrar must –(a) issue the appropriate licence to the applicant; and(b) if the application is for a group wholesale tobacco merchant's licence, endorse on the licence the name of each member of the group to whom the licence is to apply.(3) If the Registrar refuses the application, the notification under subsection (1) must include the reasons for the refusal.(4) If –the Registrar may refuse to issue the licence until the fee required to be paid has been paid.(a) the applicant has not tendered the licence fee; or(b) the Registrar is of the opinion that the amount tendered by the applicant is less than is required to be paid under this Act –(5) A licence issued under this section may be subject to such terms and conditions as the Registrar thinks fit.
18F. Licence must specify premises
[Section 18F Inserted by No. 53 of 1996, s. 12 ](1) A licence issued under section 17 or 18E is to specify the premises to be used for, or in connection with, the business carried on under the licence.(2) For the purposes of subsection (1) , premises does not include vehicles, vessels or aircraft used solely for the transportation of tobacco by the holder of the licence.
18G. Change of particulars to be notified
[Section 18G Inserted by No. 53 of 1996, s. 12 ](1) If a material change occurs in the information provided in, or in connection with, an application under section 18 or 18C (whether before or after a licence to which that application relates has been issued), the applicant or licence holder, within 14 days of becoming aware of the change, must give the Registrar written particulars of the change.Penalty: Fine not exceeding 50 penalty units.(2) When particulars of a change are given, those particulars are taken to have formed part of the original application.(3) In this section, application includes any documents lodged with an application.
18H. Licence holder to notify Registrar of cessation of business
[Section 18H Inserted by No. 53 of 1996, s. 12 ](1) A holder of a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence who has ceased carrying on tobacco wholesaling or has ceased to carry on tobacco wholesaling on any premises must notify the Registrar in writing within 14 days of so ceasing.Penalty: Fine not exceeding 50 penalty units.(2) A holder of a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence who has ceased carrying on tobacco wholesaling, upon notifying the Registrar under subsection (1) , must surrender the licence to the Registrar.Penalty: Fine not exceeding 50 penalty units.
[Section 19 Amended by No. 53 of 1996, s. 13 ](1) [Section 19 Subsection (1) amended by No. 61 of 1989, s. 12 ]A wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence –(a) . . . . . . . .(b) has force on and from the date specified in the licence as the date for the licence to come into force until, unless the licence ceases to be in force earlier, the last day of the month for which it is issued.(2) [Section 19 Subsection (2) omitted by No. 53 of 1996, s. 13 ]. . . . . . . .(3) [Section 19 Subsection (3) amended by No. 53 of 1996, s. 13 ]A retail tobacconist's yearly licence –(a) authorises the holder of the licence to carry on tobacco retailing at the premises specified in the licence; and(b) has force on and from the date specified in the licence as the date for the licence to come into force until, unless the licence ceases to be in force earlier, 31st January next following.
[Section 20 Subsection (1) amended by No. 58 of 1983, s. 4 ][Section 20 Subsection (1) amended by No. 67 of 1984, s. 4 ][Section 20 Subsection (1) amended by No. 76 of 1987, s. 5 ][Section 20 Subsection (1) amended by No. 61 of 1989, s. 13 ][Section 20 Subsection (1) amended by No. 30 of 1993, s. 4 ](1) [Section 20 Subsection (1) amended by No. 66 of 1981, s. 4 ][Section 20 Subsection (1) amended by No. 53 of 1996, s. 14 ]Subject to this section, the fee payable in respect of a licence is as follows:(a) where the licence is a wholesale tobacco merchant's licence – a fee of $12 and an amount equal to 100 per cent of the value of tobacco sold by the applicant for the licence in the course of tobacco wholesaling during the relevant period;(b) where the licence is a group wholesale tobacco merchant's licence – a fee of $12 and an amount equal to 100 per cent of the value of tobacco sold by all persons who are members of the group of wholesale tobacco merchants of which the applicant for the licence is a member (whether or not the application was made by them or on their behalf and whether or not they were members of that group during the whole or any part of the relevant period) in the course of tobacco wholesaling during the relevant period;(c) . . . . . . . .(d) where the licence is a retail tobacconist's yearly licence – a fee of $12.(2) [Section 20 Subsection (2) amended by No. 53 of 1996, s. 14 ]Where an applicant for a wholesale tobacco merchant's licence was, at any time during the relevant period for the licence in relation to which the application is made, a member of a group of wholesale tobacco merchants, the tobacco sold by the applicant in the course of tobacco wholesaling during that relevant period shall, for the purposes of subsection (1) (a) , be deemed to have included any tobacco sold by the other or, if more than one, all of the other members of the group in the course of tobacco wholesaling during that period, unless the applicant satisfies the Registrar that a fee for a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence has been paid to the Registrar after having been assessed in respect of the sale of that tobacco during that relevant period.(3) [Section 20 Subsection (3) amended by No. 53 of 1996, s. 14 ]Where –the tobacco sold by members of the first-mentioned group in the course of tobacco wholesaling during that relevant period shall, for the purposes of subsection (1) (b) , be deemed to have included any tobacco sold by any of the members of the other group in the course of tobacco wholesaling during that period, unless the applicant satisfies the Registrar that a fee for a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence has been paid to the Registrar after having been assessed in respect of the sale of that tobacco during that relevant period.(a) an application is made on behalf of all or any of the members of a group of wholesale tobacco merchants for a group wholesale tobacco merchant's licence; and(b) any member of the group referred to in paragraph (a) was, at any time during the relevant period for the licence in relation to which the application is made, a member of another group of wholesale tobacco merchants (any one or more of the members of which is not a member of the group referred to in paragraph (a) ) –(4) [Section 20 Subsection (4) substituted by No. 61 of 1989, s. 13 ]For the purposes of subsections (1) (a) and (b) , (2) and (3) , tobacco sold to the holder of a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence shall be disregarded.(4A) [Section 20 Subsection (4A) omitted by No. 53 of 1996, s. 14 ]. . . . . . . .(5) Where –(a) an application is made for a licence; and(b) the applicant did not carry on the business in respect of which the application for the licence was made during the whole of the relevant period –the fee payable in respect of the licence shall be such amount as is assessed by the Registrar as being just and reasonable in the circumstances of the case, having regard to –(c) the tobacco that in the opinion of the Registrar would have been sold by the applicant had he been carrying on that business during the whole of that period; and(d) the relevant principles of determining fees under subsections (1) to (4) .(6) Where –(a) an application is made for a licence;(b) the applicant carried on the business in respect of which the application for the licence was made during the whole of the relevant period; and(c) the Registrar is of the opinion that he cannot for any reason accurately ascertain the fee payable under subsection (1) –the fee payable in respect of the licence shall be such amount as is assessed by the Registrar as being just and reasonable in the circumstances of the case, having regard to –(d) the tobacco that in the opinion of the Registrar was sold by the applicant during that period; and(e) the relevant principles of determining fees under subsections (1) to (4) .(7) A fee payable in respect of a licence under subsection (5) or (6) is payable by the applicant for the licence.(8) In subsections (5) and (6) , applicant, in relation to a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence, includes any person whose tobacco wholesaling during the relevant period for the licence would have been required to be taken into account by reason of subsections (1) (b) , (2) , or (3) for the purpose of determining the fee for the licence if the fee had not been required to be assessed under either subsection (5) or (6) .(8A) [Section 20 Subsection (8A) substituted by No. 53 of 1996, s. 14 ]Where the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence does not reapply for a licence and the Registrar is satisfied that the business authorised by the licence is no longer carried on by that holder or any other person, the licence fee payable in respect of that licence, in relation to the last month for which the licence was issued, is to be the sum of –(a) if the licence is a wholesale tobacco merchant's licence –(i) a fee of $12 and an amount equal to 100% of the value of tobacco sold by the holder of the licence in the course of tobacco wholesaling during the month immediately preceding that first-mentioned month; and(ii) a further fee of an amount equal to 100% of the value of tobacco sold by the holder of the licence in the course of tobacco wholesaling during the first-mentioned month; or(b) if the licence is a group wholesale tobacco merchant's licence –(i) a fee of $12 and an amount equal to 100% of the value of tobacco sold by all persons who are members of the group of wholesale tobacco merchants of which the holder of the licence is a member (whether or not the application was made by them or on their behalf and whether or not they were members of that group during the whole or any part of the relevant period) in the course of tobacco wholesaling during the month immediately preceding that first-mentioned month; and(ii) a further fee of an amount equal to 100% of the value of tobacco sold by all persons who are members of the group of wholesale tobacco merchants of which the holder of the licence is a member (whether or not the application was made by them or on their behalf and whether or not they were members of that group during the whole or any part of the relevant period) in the course of tobacco wholesaling during the first-mentioned month.(8B) [Section 20 Subsection (8B) inserted by No. 76 of 1987, s. 5 ] Subsections (4) and (5) of section 22 apply to and in relation to the further fee referred to in subsection (8A) of this section as if that further fee were an additional amount payable by virtue of a reassessment of a fee under that section and as if the Registrar had made a reassessment of a fee under that section.(9) [Section 20 Subsection (9) substituted by No. 61 of 1989, s. 13 ]Where –the Registrar shall refund to that person any fee paid under this Act in respect of the sale of the tobacco in Tasmania.(a) tobacco sold in Tasmania is subsequently sold in another State or Territory of the Commonwealth; and(b) a person pays a fee in respect of that sale under a law of that State or Territory –(10) Where a fraction of a cent remains after calculating the amount that would, but for this subsection, be the fee payable in respect of a licence, the fee shall be that amount less that fraction of a cent.(11) Where in relation to an application for a licence or the renewal of a licence the applicant has paid an amount in excess of that payable under this section in respect of the licence, the Registrar shall, unless the applicant lodges with the Registrar a consent in writing to the contrary, immediately refund the excess amount to the applicant.(12) The fact that an applicant for a licence or the renewal of a licence may lodge an objection or appeal, or proposes to lodge an objection or appeal, under Part IV does not absolve him from making payment of the fee payable under this section before the issue of the licence.(13) [Section 20 Subsection (13) inserted by No. 53 of 1996, s. 14 ]The sale of tobacco –is not to be taken into account in the calculation of the fee payable in respect of a licence.(a) to or by the proprietor of a duty-free store for direct sale by the proprietor or the proprietor's employee to any person travelling outside Australia if the Registrar is satisfied that the tobacco is for consumption outside Australia; or(b) to any airline or shipping company (or any supplier of an airline or shipping company) for direct sale by the airline or shipping company to its passengers or to employees who are crew members travelling outside Australia if the Registrar is satisfied that the tobacco is for consumption outside Australia; or(c) to any exporter for direct export outside Australia if the Registrar is satisfied that the tobacco is for consumption outside Australia; or(d) to a member or an employee of the Defence Force for resale, on behalf of the Defence Force, by the member or employee to a member of the Defence Force serving outside Australia if the Registrar is satisfied that the tobacco is for consumption outside Australia –(14) [Section 20 Subsection (14) inserted by No. 53 of 1996, s. 14 ]In subsection (13) –Australia includes the territorial waters of Australia;Defence Force has the same meaning as in section 30 of the Defence Act 1903 of the Commonwealth.
(1) [Section 21 Subsection (1) substituted by No. 53 of 1996, s. 15 ]For the purposes of this Act, the value of tobacco of any kind is to be taken to be –(a) the gross price at which tobacco of that kind is ordinarily purchased in Tasmania by persons engaged in tobacco retailing; or(b) the value determined for tobacco of that kind by order in force under subsection (1A) at the commencement of the calendar month during which the licence, if issued, would be in force.(1A) [Section 21 Subsection (1A) inserted by No. 53 of 1996, s. 15 ]The Minister, by order published in the Gazette, may determine the value for tobacco of any kind for the purposes of subsection (1) .(2) Where tobacco is of a kind to which subsection (1) does not apply or is of a kind for which there is more than one gross price at which tobacco of that kind is ordinarily purchased as referred to in that subsection, its value for the purposes of this Act shall be taken to be such amount as the Registrar considers to be fair and reasonable having regard to the gross prices at which tobacco of other kinds is purchased by persons engaged in tobacco retailing.(3) [Section 21 Subsection (3) amended by No. 61 of 1989, s. 14 ]A reference in this section to the gross price of tobacco purchased by persons engaged in tobacco retailing shall be taken to include a reference to any excise duty, sales tax or other duty that forms part of the price but to exclude any amount included in the price in consideration of a fee payable in respect of a licence or any other component of the price prescribed in the regulations for the purpose of this section.
(1) [Section 22 Subsection (1) amended by No. 61 of 1989, s. 15 ]Where it appears to the Registrar that the fee assessed in respect of any licence was assessed incorrectly due to an error in calculation or a mistake of fact, he may at any time, whether or not the licence has ceased to be in force, reassess the fee in accordance with the principles of assessing fees under section 20 .(2) [Section 22 Subsection (2) substituted by No. 53 of 1996, s. 16 ]Where an applicant for a licence has made a statement that is false or misleading in a material respect in or in relation to an application, and it appears to the Registrar that the statement resulted in the fee paid for the licence being less than the fee that should have been paid, the Registrar may, at any time, whether or not the licence is still in force, reassess the fee in respect of the licence in accordance with the principles set out in section 20 .(3) [Section 22 Subsection (3) substituted by No. 66 of 1981, s. 5 ]Subject to subsection (6) , where on a reassessment of a fee under subsection (1) the fee is reduced, the Registrar shall, as soon as practicable thereafter, cause the amount overpaid to be refunded to the person who is or was the holder of the licence concerned or, where the licence is or was held by a group of wholesale tobacco merchants, to the persons who are or were members of the group in such proportions as appear to the Registrar to be just and equitable.(4) [Section 22 Subsection (4) substituted by No. 66 of 1981, s. 5 ]Subject to subsection (7) , where on a reassessment of a fee under subsection (1) or (2) the fee is increased –(a) the Registrar shall serve on the person who is or was the holder of the licence or, where the holder of the licence is or was a group of wholesale tobacco merchants, on each person who is or was a member of the group a notice of reassessment; and(b) the additional amount payable by virtue of the reassessment shall be due and payable –within 14 days after the date on which the notice is served.(i) by the person on whom the notice is served; or(ii) where notices are served on 2 or more persons, by each of those persons in such proportion as may be specified in the notice served on him –(5) [Section 22 Subsection (5) substituted by No. 66 of 1981, s. 5 ]An amount which is due and payable by a person under subsection (4) and which is unpaid may be recovered by the Registrar in a court of competent jurisdiction as a debt due to the Crown.(6) [Section 22 Subsection (6) substituted by No. 66 of 1981, s. 5 ]Where an amount is required to be refunded under subsection (3) and, during the period for which the licence concerned has been or was in force, the licence has been held successively by 2 or more persons or, as the case may be, by 2 or more groups of persons, the amount to be refunded shall be refunded to those persons or groups of persons in proportion to the periods, in days, for which they respectively held the licence.(7) [Section 22 Subsection (7) substituted by No. 66 of 1981, s. 5 ]Where an additional amount is payable under subsection (4) and, during the period for which the licence concerned has been or was in force, the licence has been held successively by 2 or more persons or, as the case may be, by 2 or more groups of persons, the additional amount is payable by those persons or groups of persons in proportion to the periods, in days, for which they respectively held the licence.(8) [Section 22 Subsection (8) inserted by No. 61 of 1989, s. 16 ]The Registrar may, on application and subject to such terms and conditions as the Registrar may determine, allow a person on whom a notice of reassessment has been served under subsection (4) to pay by instalments the whole or part of the amount assessed as being payable under this section.(9) [Section 22 Subsection (9) inserted by No. 61 of 1989, s. 16 ]Where the Registrar allows a person to pay by instalments, the Registrar may, where the Registrar considers it necessary or appropriate, require a partner or director in a business, firm, company or corporation of which that person is an employee, employer, partner or director to make a personal guarantee in respect of the payment of such an amount.(10) [Section 22 Subsection (10) inserted by No. 61 of 1989, s. 16 ]A personal guarantee made pursuant to subsection (9) is exempt from the payment of any stamp duty payable under the Stamp Duties Act 1931 .(11) [Section 22 Subsection (11) added by No. 61 of 1989, s. 16 ]Where an amount or part of an amount is due and payable under this section and is unpaid, the Registrar may recover in a court of competent jurisdiction as a debt due to the Crown, any amount unpaid together with such interest, at a rate not exceeding 20 per cent per annum, on the amount unpaid as the Registrar may determine.
22A. Person to forward note or memorandum to Registrar
[Section 22A Inserted by No. 53 of 1996, s. 17 ](1) Where a person carrying on tobacco retailing transacts or offers to transact business (which involves the acquisition of tobacco) with a person who is not the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence, the first-mentioned person must make a note or memorandum in writing of the transaction or offer and must forward that note or memorandum to the Registrar within 3 days of transacting or offering to transact the business.(2) A person carrying on tobacco retailing to whom subsection (1) applies is guilty of an offence if that person –(a) fails to make the note or memorandum required by subsection (1) ; or(b) makes a false or misleading statement in the note or memorandum; or(c) fails to forward the note or memorandum as required by subsection (1) in the time specified.(3) A person who is guilty of an offence under subsection (2) is liable in the case of a first offence to a fine not exceeding 10 penalty units and in the case of a second or subsequent offence to a fine not exceeding 20 penalty units.
23. Registers of holders of licences to be kept
(1) The Registrar shall cause to be kept for the purposes of this Act a register of wholesale tobacco merchants' licences and group wholesale tobacco merchants' licences and a register of retail tobacconists' licences.(2) The Registrar shall enter or cause to be entered in the registers kept under subsection (1) such particulars relating to licences referred to in that subsection and to the holders of those licences as may be prescribed in the regulations.(3) Any member of the public attending the office of the Registrar during the hours that that office is ordinarily open for business may request to inspect either of the registers kept under subsection (1) , and, where any such request is made, it is the duty of the Registrar to comply with the request.
If at any time while a licence is in force the holder of the licence or, where the licence is held by more than one person, any of the holders, lodges with the Registrar an instrument in writing in a form approved by him requesting him to amend the licence by adding to, substituting, or deleting from the licence particulars of the premises specified in the licence, the Registrar shall, if satisfied as to the truth of the statements contained in the instrument, make the amendment requested.
[Section 25 Substituted by No. 53 of 1996, s. 18 ](1) If the Registrar reasonably believes at any time –the Registrar may suspend the licence by giving written notice to the holder.(a) that the holder of a licence has failed to provide information (whether in an application for a licence or otherwise) to the Registrar that the holder was required by this Act to provide, or has provided information that is false or misleading in any material particular; or(b) that the holder of a licence has otherwise contravened this Act; or(c) that the holder of a wholesale tobacco merchant's licence or group wholesale tobacco merchant's licence is not an Australian resident or, if a holder of such a licence is a corporation, the holder is not incorporated in a State or Territory; or(d) that the holder of a licence has been refused, in any State or Territory, a licence to wholesale or retail tobacco; or(e) that the holder of a licence has had, in any State or Territory, a licence to wholesale or retail tobacco suspended or revoked; or(f) that the holder of a licence does not have sufficient financial resources to carry on tobacco wholesaling for the remainder of the current month and for any subsequent period in respect of which the holder has stated, in an application under section 18C , an intention to carry on tobacco wholesaling; or(g) that the holder of a licence has been convicted (within the period of 5 years immediately preceding the date of application for the current licence) of an offence under a State Taxation Act or a corresponding law punishable by a fine of $1 000 or more; or(h) if the holder of a licence is a corporation, that a director of the holder has been convicted (within the period of 5 years immediately preceding the date of application for the current licence) of an offence under a State Taxation Act or a corresponding law punishable by a fine of $1 000 or more; or(i) that the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence does not have suitable facilities and equipment for safe storage and distribution of tobacco by the holder; or(j) that the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence has failed to pay an additional amount payable under section 22 (4) –(2) A suspension under subsection (1) takes effect on the date of service of the notice referred to in subsection (1) .(3) A notice of suspension is to –(a) set out the reasons for the suspension; and(b) require the holder of the licence, within 14 days of the date of the service of the notice, to show cause why the licence should not be revoked.
[Section 26 Substituted by No. 53 of 1996, s. 18 ]For the purposes of sections 16 and 16A , a person whose licence is suspended under section 25 is taken not to hold that licence during the period of suspension.
[Section 26A Substituted by No. 53 of 1996, s. 18 ][Section 27 Repealed by No. 61 of 1989, s. 18 ]. . . . . . . . [Section 28 Repealed by No. 61 of 1989, s. 19 ]. . . . . . . .(1) After the end of the period specified in section 25 (3) (b) , and having taken into account any written or oral submissions made by or on behalf of the holder of a licence, the Registrar, by written notice to the holder of the licence, may revoke the licence if –(a) the Registrar is satisfied as to any of the matters referred to in section 25 (1) ; and(b) the Registrar considers that, had the Registrar known of that matter at the time of determining the application for the licence, the Registrar would not have granted the application.(2) If a licence is revoked under subsection (1) , the Registrar may determine the manner in which any tobacco in the possession of the person whose licence has been revoked may be disposed of.
29. Assessment and recovery of unpaid fee from unlicensed person
(1) Where a person was required by this Act to hold a licence in respect of any period, but did not do so, that person is liable to pay to the Registrar an amount equal to the fee which would have been payable if he had applied for and been issued a licence in accordance with this Act.(2) The Registrar may assess the amount referred to in subsection (1) as if the person had applied for a licence.(3) As soon as practicable after making an assessment under subsection (2) , notice of the assessment shall be served by the Registrar on the person.(4) [Section 29 Subsection (4) substituted by No. 61 of 1989, s. 20 ]The Registrar may, on application and subject to such conditions as the Registrar may determine, allow a person on whom a notice of assessment has been served under subsection (3) to pay by instalments the whole or part of the amount assessed as being payable under this section.(5) [Section 29 Subsection (5) substituted by No. 61 of 1989, s. 20 ]Where the Registrar allows a person to pay by instalments, the Registrar may, where the Registrar considers it necessary or appropriate, require a partner or director in a business, firm, company or corporation of which that person is an employee, employer, partner or director to make a personal guarantee in respect of the payment of such amount.(6) [Section 29 Subsection (6) inserted by No. 61 of 1989, s. 20 ]A personal guarantee made pursuant to subsection (5) is exempt from the payment of any stamp duty payable under the Stamp Duties Act 1931 .(7) [Section 29 Subsection (7) added by No. 61 of 1989, s. 20 ]Where an amount or part of an amount assessed under this section is unpaid, the Registrar may recover in a court of competent jurisdiction as a debt due to the Crown any amount unpaid together with such interest at a rate, not exceeding 20 per cent per annum, on the amount unpaid as the Registrar may determine.
29A. Appeal or objection not to suspend payment or recovery of fees
[Section 29A Inserted by No. 61 of 1989, s. 21 ](1) An obligation on a person to pay any fees or a right to recover any fees payable under this Act is not suspended or affected by any appeal made or objection lodged by that person under Part IV .(2) Where, on an appeal or objection, an assessment or reassessment of any fee payable is varied to increase that fee, the amount of that increase becomes payable to the Registrar.(3) Where, on an appeal or objection, an assessment or reassessment of any fee payable is varied to decrease that fee, the Registrar shall, if the fee has been paid, refund the amount of that decrease to the person who lodged that appeal or objection.(4) Where, on an appeal or objection, an assessment or reassessment of any fee payable is quashed, the Registrar shall refund any fees paid by the person who made the appeal or objection.
PART IV - Appeals and objections
30. Appeal against refusal of application for licence
[Section 31 Repealed by No. 53 of 1996, s. 19 ]. . . . . . . .(1) Where, on an application for a licence, the Registrar refuses to issue the licence, the person who made the application may, within such period as may be prescribed, appeal to the Supreme Court against the refusal of the application.(2) If, on the hearing of an appeal under subsection (1) , the Supreme Court is satisfied that in all the circumstances of the case a licence of the kind to which the appeal relates ought to have been issued, it shall make an order directing that, subject to the payment of the appropriate licence fee, a licence of that kind be issued to the appellant to be in force on and from such date as is specified in the order.(3) The Registrar shall give effect to any order made by the Supreme Court under subsection (2) .(4) Subject to this section, an appeal under subsection (2) shall be instituted, heard, and determined in accordance with rules of court of the Supreme Court.
32. Appeal against revocation of licence
(1) [Section 32 Subsection (1) amended by No. 61 of 1989, s. 22 ]Where the Registrar revokes a licence issued under Part III , the person who was the holder of the licence may, within such period as may be prescribed, appeal to the Supreme Court against the revocation.(2) If, on the hearing of an appeal under subsection (1) , the Supreme Court is satisfied that in all the circumstances of the case the licence to which the appeal relates ought not to have been revoked, it shall make an order directing that the licence be reinstated from such date, whether before, on, or after the date of the order, and on such terms and conditions, as may be specified in the order.(3) The Registrar shall give effect to any order made by the Supreme Court under subsection (2) .(4) Subject to this section, an appeal under subsection (1) shall be instituted, heard, and determined in accordance with rules of court of the Supreme Court.
33. Objection to and appeal against assessment of licence fee
(1) Where a licensee who has paid the fee assessed in respect of his licence in accordance with section 20 is dissatisfied with the assessment on the ground that the fee has been incorrectly assessed, he may, within 1 month after the issue of the licence, lodge an objection in writing with the Registrar against the assessment.(2) As soon as practicable after an objection is lodged with him under subsection (1) , the Registrar shall determine the objection either by confirming the assessment of the fee to which the objection relates or by increasing or reducing it, and shall serve on the licensee concerned a notice of the determination in writing.(3) If –that licensee may, on the ground referred to in subsection (1) , appeal to the Supreme Court against the Registrar's determination or, where paragraph (b) applies, against the assessment of the fee to which objection relates.(a) a licensee on whom a notice is served under subsection (2) is not satisfied with the determination as set out in the notice; or(b) a licensee has not, within 1 month after lodging an objection under subsection (1) , been served under subsection (2) with a notice setting out the Registrar's determination of the objection –(4) An appeal under subsection (3) may be lodged –and such an appeal may be lodged in the circumstances specified in paragraph (a) notwithstanding that the licensee could have previously lodged such an appeal in the circumstances specified in paragraph (b) .(a) where the licensee concerned is not satisfied with the determination of his objection as set out in the notice served on him under subsection (2) – within 1 month after being served with the notice; or(b) where the licensee concerned has not, within 1 month after lodging the objection under subsection (1) , been served with a notice of determination in respect of the objection – within 2 months after lodging the objection –(5) On the hearing of an appeal under subsection (3) , the Supreme Court may make an order confirming or varying the determination or assessment appealed against, and, in making an order varying that determination or assessment, the Court shall have regard to the provisions of section 20 .(6) The Supreme Court may make such ancillary orders for the purpose of giving effect to an order under subsection (5) as it considers just and equitable.(7) The decision of the Supreme Court on an appeal under subsection (3) is conclusive.(8) Subject to this section, an appeal under subsection (3) shall be instituted, heard, and determined in accordance with rules of court of the Supreme Court.(9) Where –the Registrar shall refund to the person who lodged the objection or appeal the difference between the amounts referred to in paragraph (c) .(a) on an objection or appeal under this section, the Registrar or, as the case may be, the Supreme Court upholds the objection or appeal either wholly or in part;(b) the whole of the amount of the fee (if any) as determined on the objection or appeal has been paid; and(c) the amount of fee as so determined is less than the amount of fee originally paid –
34. Objection to and appeal against reassessment
(1) Where a notice of reassessment is served on a person under section 22 requiring him to pay an additional amount, he may, within 1 month after service of the notice, lodge an objection in writing with the Registrar on the ground that the additional amount is excessive or that it is not payable.(2) As soon as practicable after an objection is lodged with him under subsection (1) , the Registrar shall determine the objection by confirming, varying, or quashing the reassessed fee, and shall serve on the person who lodged the objection a notice of the determination in writing.(3) If –that person may, on a ground referred to in subsection (1) , appeal to the Supreme Court against the Registrar's determination, or, where paragraph (b) applies, against the reassessment of the fee to which objection relates.(a) a person on whom a notice is served under subsection (2) is not satisfied with the determination as set out in the notice; or(b) a person has not, within 1 month after lodging an objection under subsection (1) , been served under subsection (2) with a notice setting out the Registrar's determination of the objection –(4) An appeal under subsection (3) may be lodged –and such an appeal may be lodged in the circumstances specified in paragraph (a) notwithstanding that the appellant could have previously lodged such an appeal in the circumstances specified in paragraph (b) .(a) where the person concerned is not satisfied with the determination of his objection as set out in the notice served on him under subsection (2) – within 1 month after being served with the notice; or(b) where the person concerned has not, within 1 month after lodging the objection under subsection (1) , been served with a notice of determination in respect of the objection – within 2 months after lodging the objection –(5) On the hearing of an appeal under subsection (3) , the Supreme Court may make an order confirming, varying, or quashing the determination or reassessment appealed against, and, in making an order varying that determination or reassessment, the Court shall have regard to the provisions of section 20 .(6) The Supreme Court may make such ancillary orders for the purpose of giving effect to an order under subsection (5) as it considers just and equitable.(7) The decision of the Supreme Court on an appeal under subsection (3) is conclusive.(8) Subject to this section, an appeal under subsection (3) shall be instituted, heard, and determined in accordance with rules of court of the Supreme Court.(9) [Section 34 Subsection (9) omitted by No. 61 of 1989, s. 23 ]. . . . . . . .
35. Objection to and appeal against assessment of unlicensed persons
(1) A person on whom a notice of assessment is served under section 29 (3) may, within 1 month after service of the notice, lodge an objection in writing with the Registrar against the assessment on the ground that the fee was incorrectly assessed by the Registrar in terms of section 20 or that he was not a person required to hold a licence in respect of the period to which the assessment relates.(2) As soon as practicable after an objection is lodged with him under subsection (1) , the Registrar shall determine the objection, either by confirming the assessment of the fee to which the objection relates or by quashing or varying it, and serve on the person who lodged the objection a notice of the determination in writing.(3) If –that person may, on a ground referred to in subsection (1) , appeal to the Supreme Court against the Registrar's determination, or, where paragraph (b) applies, against the assessment of the fee to which the objection relates.(a) a person on whom a notice is served under subsection (2) is not satisfied with the determination as set out on the notice; or(b) a person has not, within 1 month after lodging an objection under subsection (1) , been served under subsection (2) with a notice setting out the Registrar's determination of the objection –(4) An appeal under subsection (3) may be lodged –and such an appeal may be lodged in the circumstances specified in paragraph (a) notwithstanding that the appellant could have previously lodged such an appeal in the circumstances specified in paragraph (b) .(a) where the person concerned is not satisfied with the determination of his objection as set out in the notice served on him under subsection (2) – within 1 month after being served with the notice; or(b) where the person concerned has not, within 1 month after lodging the objection under subsection (1) , been served with a notice of determination in respect of the objection within 2 months after lodging the objection –(5) On the hearing of an appeal under subsection (3) , the Supreme Court may make an order confirming, quashing, or varying the determination or assessment appealed against, and, in making an order varying that determination or assessment, the Court shall have regard to the provisions of section 20 as if the appellant had at the relevant time been the holder of a licence.(6) The Supreme Court may make such ancillary orders for the purpose of giving effect to an order under subsection (5) as it considers just and equitable.(7) The decision of the Supreme Court on an appeal under subsection (3) is conclusive.(8) Subject to this section, an appeal under subsection (3) shall be instituted, heard, and determined in accordance with rules of court of the Supreme Court.
PART V - Miscellaneous
[Section 36 Subsection (1) amended by No. 53 of 1996, s. 20 ](1) [Section 36 Subsection (1) amended by No. 61 of 1989, s. 24 ]Any person who carries on tobacco retailing or tobacco wholesaling must, unless the Registrar otherwise determines –(a) keep at a place within Tasmania such records as may be prescribed containing such particulars as may be prescribed relating to tobacco that is acquired, held, or sold for the purposes of or in the course of that business; and(b) preserve each of those records for a period of 6 years after the last entry was made in it.(2) [Section 36 Subsection (2) amended by No. 61 of 1989, s. 24 ]A person referred to in subsection (1) who fails to comply with that subsection is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units.(3) This section does not apply so as to require the preservation of records –and does not apply to an invoice to which section 37 applies.(a) in respect of which the Registrar has notified the person carrying on the business that preservation is not required; or(b) of a company which has gone into liquidation and which has been finally dissolved –(4) [Section 36 Subsection (4) inserted by No. 53 of 1996, s. 20 ]The Registrar may determine that records may be kept and maintained outside Tasmania subject to such conditions as the Registrar imposes.
37. Invoices to be issued, &c.
(1) [Section 37 Subsection (1) amended by No. 61 of 1989, s. 25 ]Every person who is the holder of a wholesale tobacco merchant's licence or a member of a group that is the holder of a group wholesale tobacco merchant's licence shall –(a) issue to every person to whom he sells tobacco an invoice in respect of the sale of that tobacco specifying –(i) the name and address of the purchaser of the tobacco;(ii) the quantity of tobacco sold; and(iii) the total consideration for the sale of the tobacco; and(b) endorse or cause to be endorsed on every such invoice the words "SOLD BY LICENSED WHOLESALER – LICENCE NO. " followed by the number of his licence.(2) [Section 37 Subsection (2) amended by No. 61 of 1989, s. 25 ]If the holder of a wholesale tobacco merchant's licence or a member of a group that is the holder of a group wholesale tobacco merchant's licence fails to comply with subsection (1) , he is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(3) A person shall not issue an invoice which bears –(a) the words "SOLD BY LICENSED WHOLESALER" (or words of similar import) unless he is the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence; or(b) the matter "LICENCE NO. " (or matter of similar import) followed by a number unless he is the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence bearing that number.(4) [Section 37 Subsection (4) amended by No. 61 of 1989, s. 25 ]Any person who contravenes subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(5) Every person who is the holder of a wholesale tobacco merchant's licence or a member of a group that is the holder of a group wholesale tobacco merchant's licence shall keep at a place in Tasmania a copy of every invoice issued by him under subsection (1) for a period of not less than 6 years from the date of issue.(6) [Section 37 Subsection (6) amended by No. 61 of 1989, s. 25 ]If the holder of a wholesale tobacco merchant's licence or a member of a group that is the holder of a group wholesale tobacco merchant's licence fails to comply with subsection (5) , he is guilty of an offence and is liable on summary conviction to a fine not exceeding 50 penalty units.(7) If, within the period specified in subsection (5) , a person ceases to be the holder of a wholesale tobacco merchant's licence or to be a member of a group that is the holder of a group wholesale tobacco merchant's licence or a group of which he is a member ceases to be the holder of a group wholesale tobacco merchant's licence, that subsection shall continue to apply to him for the remainder of the period as if he were the holder of a wholesale tobacco merchant's licence or, as the case may be, a member of a group that is the holder of a group wholesale tobacco merchant's licence and shall be construed accordingly.
(1) Where a vending machine from which tobacco can be obtained is kept on any premises, the occupier of the premises shall, unless he is the holder of a retail tobacconist's licence, ensure that the owner of the machine is the holder of such a licence.(2) The occupier of premises on which there is kept a vending machine from which tobacco can be obtained shall ensure that there is affixed to the machine a plate specifying the prescribed particulars of the holder of the licence in respect of the machine.(3) [Section 38 Subsection (3) amended by No. 61 of 1989, s. 26 ]An occupier of premises who fails to comply with subsection (1) or (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units.(4) For the purposes of subsection (1) , where a vending machine referred to in that subsection is leased or hired from the owner, the reference in that subsection to the owner shall be construed as a reference to the lessee or hirer of the machine.
(1) [Section 39 Subsection (1) amended by No. 61 of 1989, s. 27 ]Except as provided by subsection (3) and subject to subsection (4) , a person shall not disclose any information or publish any record or part of any record obtained by him in connection with the administration or execution of this Act, unless the disclosure or publication is made –(a) with the consent of the person from whom the information or record was obtained (being a person entitled or authorised to give that consent);(ab) to an officer of the Commonwealth, or of a State or Territory of the Commonwealth, employed in the administration of laws relating to taxation;(ac) to a police officer within the meaning of the Police Regulation Act 1898 ;(b) in connection with the administration or execution of this Act; or(c) for the purpose of any legal proceedings arising out of this Act or of any report of any such proceedings.(2) [Section 39 Subsection (2) amended by No. 61 of 1989, s. 27 ]Any person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 25 penalty units.(3) The Registrar may communicate any matter which comes to his knowledge in the performance or exercise of his functions or duties under this Act to an officer or authority engaged in administering or executing a law of another State or a Territory of the Commonwealth relating to the licensing of persons to carry on the business of selling any tobacco.(4) Subsection (1) does not prevent the disclosure of information or the publication of a record in accordance with any lawful requirement of the Commonwealth Statistician.
40. False or misleading statements
[Section 40 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 40 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ](1) [Section 40 Subsection (1) amended by No. 61 of 1989, s. 28 ]Subject to subsection (3) , any person who –that is false or misleading in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units or to imprisonment for a term not exceeding 2 years, or both.(a) makes an application under this Act; or(b) makes an answer whether orally or in writing to a question put to him pursuant to this Act by the Registrar or by or before the Supreme Court –(2) [Section 40 Subsection (2) amended by No. 61 of 1989, s. 28 ]Subject to subsection (3) , any person who –pursuant to this Act, makes any statement or representation that is false or misleading in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding 100 penalty units or to imprisonment for a term not exceeding 2 years, or both.(a) in providing any information;(b) in giving any notification; or(c) in keeping any record –(2A) [Section 40 Subsection (2A) inserted by No. 53 of 1996, s. 21 and Sched. 1 ]If a person makes a false or misleading statement or representation which results in the person not paying a licence fee under this Act or paying a lesser licence fee under this Act than the person, were it not for the statement or representation, would have been liable to pay is, in addition to any other penalty imposed under this section, liable to pay the licence fee or the difference between the licence fee which should have been paid by that person and the lesser licence fee.(3) It is a defence to a charge under subsection (1) or (2) if it is proved that, at the time the application, answer, statement, or representation was made, the defendant believed on reasonable grounds that it was neither false nor misleading.
40A. Power of Registrar to apply for injunction
[Section 40A Inserted by No. 61 of 1989, s. 29 ]Where a person continues to contravene or persists in failing to comply with this Act, the Registrar may, whether or not proceedings are instituted in respect of the contravention or failure to comply, apply to the Supreme Court for an injunction.
[Section 41 Substituted by No. 66 of 1981, s. 9 ][Section 41 Amended by No. 61 of 1989, s. 30 ](1) A certificate purporting to be signed by the Registrar certifying –is admissible in any proceedings under this Act and shall be evidence of the matters so certified.(a) that a person specified in the certificate was an inspector at a time or during a period so specified;(b) that a person specified in the certificate was or was not the holder of a licence at a time or during a period so specified;(c) that any specified assessment or reassessment of a fee in respect of a licence, or any specified assessment under section 29 , has been made in accordance with this Act;(d) that the amount of any specified fee payable under this Act has not been paid on the date on which it was due to be paid and, where appropriate, that the fee had not been paid at the time when the certificate was issued;(e) that a person specified in the certificate is liable to pay a specified fee in respect of a specified period;(f) that an application was or was not received from or on behalf of a specified person; or(g) that a person specified in the certificate was required to furnish specified information and failed or neglected to do so –(2) If in any proceedings for an offence against section 16 (1) , (2) , or (3) , it is proved that the defendant sold tobacco, that person shall, for the purpose of those proceedings, be presumed to have been carrying on a business of selling tobacco unless he satisfies the court to the contrary.(3) [Section 41 Subsection (3) added by No. 61 of 1989, s. 30 ]The production of a document signed by the Registrar purporting to be a copy of or extract from a notice of assessment or reassessment, document, instrument, statement or licence is evidence, where applicable –and is admissible in any proceedings under this Act without production of the original.(a) that an assessment or reassessment was made; and(b) that the notice of assessment or reassessment, document, instrument, statement or licence was issued by the Registrar; and(c) of the matters specified in the notice of assessment or reassessment, document, instrument, statement or licence –(4) [Section 41 Subsection (4) added by No. 61 of 1989, s. 30 ]A statement written or printed in or on any package or container to the effect or indicating that the package or container contains tobacco, is evidence that the package or container contains or has contained tobacco.
42. Proceedings on prosecutions
(1) Proceedings for an offence against this Act may be commenced at any time within a period of 3 years after the time when the offence is alleged to have been committed.(2) A complaint in respect of an offence against this Act may be made in the name of the Registrar by any officer of the Public Service employed in the administration or execution of this Act and authorised to make complaints on behalf of the Registrar, and any prosecution instituted in the name of the Registrar shall, in the absence of evidence to the contrary, be deemed to have been instituted by his authority.(3) An officer referred to in subsection (2) may appear on behalf of the Registrar in any proceedings for an offence against this Act.
43. Offences by bodies corporate
(1) Where an offence against this Act is committed by a body corporate, every person concerned in the management of that body corporate shall be deemed also to have committed the offence and may be convicted of the offence, unless he proves that the act or omission constituting the offence took place without his knowledge or consent.(2) A person referred to in subsection (1) may be convicted of an offence under that subsection whether or not the body corporate is charged with or convicted of the offence.
44. Service of documents by the Registrar
(1) Any notice or other document required or authorised by this Act to be served or given by the Registrar shall be deemed to have been duly served or given –(a) if delivered personally to the person on or to whom the notice or document is to be served or given or if left at the place of residence or business of that person in or out of the State last known to the Registrar; or(b) if sent by prepaid letter post, addressed to the person on or to whom the notice or document is to be served or given at his place of residence or business in or out of the State last known to the Registrar.(2) Service of a notice or document in accordance with subsection (1) (b) shall, unless the contrary is established, be deemed to have been effected at the time when it would be delivered in the ordinary course of post.(3) [Section 44 Subsection (3) amended by No. 9 of 1987, s. 7 and Sched. 10 ]The provisions of this section are in addition to the provisions of section 528 of the Companies (Tasmania) Code .
(1) The Governor may make regulations for carrying out or giving effect to this Act and, in particular, may make regulations for or with respect to –(a) requiring persons, or persons belonging to classes of persons, specified in the regulations –(i) to make returns in such form and manner and containing such information relating to sales, purchases, or stocks of, or dealings with, tobacco, as is indicated by the regulations; and(ii) to lodge the returns with the Registrar within such time as may be so specified; and(b) the display and production of licences by the holders of the licences.(2) [Section 45 Subsection (2) amended by No. 61 of 1989, s. 31 ]The regulations may provide for a contravention of, or failure to comply with, any provision of the regulations to be an offence and for the imposition of a fine not exceeding 10 penalty units for such an offence.(3) Regulations may be made so as to apply differently to or in respect of different classes of persons or different classes of tobacco or according to such other different factors as may be specified in the regulations.
46. Repeal of Act No. 29 of 1972
The Tobacco Act 1972 is repealed.
47. Transitional provisions in respect of existing wholesale and group wholesale tobacco merchants' licences
[Section 47 Inserted by No. 53 of 1996, s. 22 ](1) Any person who is the holder of a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence for the month in which the Tobacco Business Franchise Licences Amendment Act 1996 commences is deemed to have been granted a licence under section 18E .(2) If the holder of a licence under subsection (1) wishes to continue to undertake tobacco wholesaling in the month following the month in which this Act commences, the holder must apply for a licence under section 18C and must provide the Registrar with any additional information required under section 18 which the holder of the licence has not previously provided.
48. Transitional provisions in respect of retail monthly tobacconists' licences
[Section 48 Inserted by No. 53 of 1996, s. 22 ](1) Any retail tobaconnists' monthly licences issued for the month in which the Tobacco Business Franchise Licences Amendment Act 1996 commences are deemed to have been cancelled on the last day of that month.(2) The fee payable for the last month in which a retail monthly tobaconnist's licence which has been cancelled under subsection (1) was in effect is, in addition to the fee paid in respect of the licence, the sum of –(a) an amount equal to 100% of the value of tobacco purchased by the licence holder (other than tobacco purchased from the holder of a licence issued under this Act) in the month immediately before the month in which the licence is cancelled; and(b) an amount equal to 100% of the value of tobacco purchased by the licence holder (other than tobacco purchased from the holder of a licence issued under this Act) in the month in which the licence is cancelled.
49. Application of 1993 amendments
The amendments made to this Act by the Tobacco Business Franchise Licences Amendment Act 1993 apply to fees payable in respect of –(a) a licence or renewal of a licence issued in respect of a month which commenced on or after 1 August 1993, whether the application for that licence or renewal was made before or after the commencement of that month; and(b) a licence in force immediately before 1 September 1993 where the holder does not renew that licence for any month commencing on or after that date, whether the holder had given notice of the intention not to renew the licence before or after that date.
SCHEDULE 1 - [Schedule 1 Heading amended by No. 53 of 1996, s. 23 ]Relevant Periods for Wholesale Tobacco Merchants' Licences and Group Wholesale Tobacco Merchants' Licences
Column 1 | Column 2 | February | December | March | January | April | February | May | March | June | April | July | May | August | June | September | July | October | August | November | September | December | October | January | November |