Treasury Laws Amendment (Illicit Tobacco Offences) Bill 2018 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 142 (9 May 2018)

• Treasury Laws Amendment (Illicit Tobacco Offences) Bill 2018
• Absolute liability offences87
• Reversal of the evidential burden of proof96

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Treasury Laws Amendment (Illicit Tobacco Offences) Bill 2018

Purpose	This bill seeks to amend the Excise Act 1901, the Income Tax Assessment Act 1997 and the Taxation Administration Act 1953 to: • provide a comprehensive set of offences that can be applied to illicit tobacco: - that has been domestically manufactured or produced; or - for which the origin of production or manufacturing is unknown or uncertain; • create new offences for possession of equipment for producing or manufacturing illicit tobacco; • provide that illicit tobacco for which the origin of production or manufacturing is unknown or uncertain can be seized and forfeited; and • amend the meaning for excise and excise‑equivalent customs duty purposes so that the amount of duty on dutiable products is determined in a consistent manner.
Portfolio	Treasury
Introduced	House of Representatives on 15 February 2018
Bill status	Before the Senate

2.162 The committee dealt with this bill in Scrutiny Digest No. 3 of 2018. The minister responded to the committee's comments in a letter received 13 April 2018. Set out below are extracts from the committee's initial scrutiny of the bill and the minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[86]

Absolute liability offences^[87]

2.163 Proposed Subdivision 308-A seeks to create a number of offences ('reasonable suspicion offences') relating to the possession, purchase, sale, manufacture and production of illicit tobacco (that is, tobacco on which excise or customs duty has not been paid). Proposed Subdivision 308-B seeks to create additional offences ('fault-based offences') relating to the possession, manufacture and production of illicit tobacco. The penalties for the offences in proposed Subdivisions 308-A and 308-B vary depending on the weight of the tobacco, and range from the greater of 200 penalty units and five times the excise duty that would be payable on the tobacco, to 10 years imprisonment, the greater of 1,500 penalty units and five times the excise duty that would payable on the tobacco, or both.

2.164 The bill proposes to apply absolute liability to the weight of the tobacco as an element of the offences in proposed Subdivisions 308-A and 308-B. Additionally, the bill proposes to apply absolute liability as to whether it is reasonable to suspect that excise or customs duty has not been paid on the tobacco, and that no exemption to the payment of excise or customs duty exists under a law of the Commonwealth, as an element of the reasonable suspicion offences in proposed Subdivision 308-A.

2.165 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of absolute liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent.

2.166 As the imposition of absolute liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of absolute liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[88] In this regard, the committee notes that the Guide states that absolute liability should only be applied to particular elements of an offence (as opposed to the offence as a whole) where one of the following applies:

• requiring proof of fault would undermine deterrence, and there are legitimate grounds for penalising persons lacking fault and persons who make a reasonable mistake of fact in relation to the relevant element; or

• the element is a jurisdictional element, rather than an element going to the essence of the offence.^[89]

2.167 The explanatory memorandum provides a detailed explanation for the application of absolute liability to the weight of the tobacco as an element of the offences in proposed Subdivisions 308-A and 308-B:

Absolute liability is appropriate for [the weight of the tobacco] ... as it is essentially a precondition of the offence and the state of mind of the defendant with respect to this element is not relevant to that element. There would be inherent difficulties of establishing a mental element in relation to the weight of the thing that would otherwise undermine deterrent. The prosecution must still prove the weight of the tobacco at the time of the offence.

2.168 The application of absolute liability also prevents the defence of honest and reasonable mistake of fact from being raised — a defence that remains available where strict liability is applied. The committee notes the explanation that there would be inherent difficulties in establishing a mental element as to the weight of a thing. The committee also notes the explanation in the explanatory memorandum that it is not considered appropriate to apply strict liability, instead of absolute liability, as this would mean there could be 'a significant risk that offenders may escape conviction solely on the basis of a mistaken belief about weight'.^[90] However, the committee notes that the bill proposes to make it an offence to possess, buy or sell 5kg or more of tobacco (with more significant penalties applying depending on the weight of the tobacco). Possessing, buying or selling less than 5kg of tobacco is not proposed to be an offence. The committee is concerned that applying absolute liability to the weight of the tobacco could lead to a person being convicted of a criminal offence,^[91] despite holding a reasonable belief that they had in their possession (or bought or sold) less than 5kg of tobacco (which is not an offence), and despite having taken reasonable steps to confirm the tobacco's weight.

2.169 In addition, the bill seeks to impose absolute liability on whether it is reasonable to suspect that excise or customs duty has not been paid or is exempt from being paid (for the offences in proposed Subdivision 308-A). In this regard, the explanatory memorandum states:

It is for the Court to determine whether it is reasonable to suspect that duty has not been paid or an exemption applies. Therefore, it is appropriate that absolute liability applies to this element of the offence.
The state of mind that the defendant had at the time they possessed, bought or sold the tobacco is not relevant to the objective existence of reasonable suspicion (although it is relevant to the physical element of conduct (possessing, buying or selling) which is contained in a separate element to which the fault element of intention applies).^[92]

2.170 The committee acknowledges that the element of 'reasonable suspicion' does not refer to the state of mind of the defendant, and refers instead to whether a court considers it reasonable to suspect that payable excise or customs duty has not been paid. In this regard, the committee notes that proposed section 308-55 sets out a number of circumstances that are taken to satisfy the 'reasonable suspicion' element of the offences in proposed Subdivision 308-A.

2.171 However the explanatory memorandum does not address why it is not appropriate to apply strict liability to the 'reasonable suspicion' element of the offences in proposed Subdivision 308-A, instead of absolute liability or why it is inappropriate to exclude the defence of reasonable mistake of fact. The committee is concerned that a person could be convicted of an offence under proposed Subdivision 308-A despite reasonably believing that excise duty or excise-equivalent customs duty had been paid. This is of particular concern with respect to the offences relating to the possession of tobacco in proposed sections 308-10, 308-15 and 308-20. For example, proposed subparagraph 308-55(1)(a) provides that the 'reasonable suspicion' element is taken to be satisfied if the tobacco is not in retail packaging that complies with the requirements in Chapter 2 of the Tobacco Plain Packaging Act 2011 (Plain Packaging Act). If strict liability were applied to the 'reasonable suspicion' element, a person could raise a defence (to the offences relating to possession) if they came into possession of tobacco in packaging that they reasonably (yet mistakenly) believed to comply with the Plain Packaging Act. This appears consistent with the aims of the 'reasonable suspicion' element, which is to 'encourage persons dealing in tobacco to ensure that they comply with legislative requirements that apply to tobacco and tobacco products.'^[93]

2.172 However, as absolute liability is applied that element, the person could be convicted of a possession offence (which may carry a significant custodial penalty) despite reasonably believing that the tobacco was packaged in accordance with the requirements of the Plain Packaging Act, and therefore reasonably believing that excise or customs duty had been paid.

2.173 The committee requests the minister's more detailed justification for the application of absolute liability (rather than strict liability) to:

• the weight of the tobacco, as an element of the offences in proposed Subdivisions 308-A and 308-B; and

• whether it is reasonable to suspect that excise or customs duty has not been paid, or is exempt from being paid under Commonwealth law, as an element of the offences in proposed Subdivision 308-A.

2.174 The committee's consideration of the appropriateness of applying absolute liability to these elements would be assisted if the justification explicitly addresses the principles set out in the Guide to Framing Commonwealth Offences.^[94]

2.175 The committee also requests the minister's advice as to the appropriateness of amending the bill to apply strict liability, rather than absolute liability, to the elements identified above.

Minister's response

2.176 The minister advised:

Proposed Subdivisions 308-A and 308-B create a range of offences that would apply to individuals that possess or otherwise deal with illicit tobacco. As the Committee notes, some elements of these offences, including those elements relating to the weight of the tobacco, and whether a reasonable suspicion exists that excise or excise-equivalent customs duty has not been paid, are subject to absolute liability.
The Committee has sought more detailed justification for why these offences should not be subject to strict, rather than absolute, liability which would instead permit a defence of mistake of fact.
I consider that, consistent with the Guide to Framing Commonwealth Offences, that both matters are pre-conditions of the offence for which the defendant's state of mind is not relevant.
In the case of the weight of the tobacco, this is because the weight of the tobacco is an objective and important indicator of the seriousness of such offences. Consistent with the approach taken for offences involving commercial or marketable quantities of drugs, if a person holds or otherwise deals with the requisite quantity of tobacco it is appropriate and intended that the specified criminal and civil consequences should apply, even if the person mistakenly believed the quantity of tobacco involved was smaller.
A potential imprisonment term applies for illicit tobacco offences for quantities of tobacco weighing 250 kilograms or more. As offences of this nature require large scale activities and organisation it is appropriate that absolute liability apply to the weight of the tobacco. Similarly, illicit tobacco offences involving tobacco weighing five kilograms or more are subject to a criminal offence for which a monetary penalty only applies. Five kilograms of tobacco represents the equivalent of 7,000 cigarettes with excise duty of over $4,500 applicable based on current duty rates and is a significant amount of tobacco. Given the highly regulated nature of tobacco, it would also be expected that any person controlling tobacco of this weight would be aware that serious consequences arise from possessing this quantity of tobacco without reason to believe that duty has been paid.
In this respect, it should be noted that these offences either require the prosecution to prove that duty was required to be paid and has not been paid on the tobacco or include a defence that will apply if the individual reasonably believed duty had been or was not required to be paid. Given this, a person can only be convicted of this offence as a result of a mistaken belief about weight if they either knew duty had not been paid or did not reasonably believe that duty was paid on the tobacco.
It should also be noted that the possessing or importing of any quantity of excisable or dutiable goods (including tobacco) remain offences under the Excise Act 1901 and the Customs Act 1901.
In the case of reasonable suspicion, as the Committee notes, this element is also an entirely objective matter going to the circumstances in which the tobacco is held or otherwise dealt with rather than about the state of mind of the defendant. It is not relevant whether the defendant had a reasonable suspicion or was aware of the factor or factors that gave rise to the suspicion, merely that the factor or factors existed.
I understand the Committee has concerns that this may mean that a person may be convicted of the offence despite reasonably but mistakenly believing that a reasonable suspicion could not exist and therefore believing that the excise or customs duty had been paid.
All of the offences for which reasonable suspicion is an element of the offence include a defence that will apply if a person reasonably believes that duty has been paid or was not required to be paid, for whatever reason. This defence goes beyond the defence of mistake of fact and ensures that a person will not be subject to the offence even if the person may be aware of a factor that might give rise to a reasonable suspicion (such as a defect in packaging).

Committee comment

2.177 The committee thanks the minister for this response, and notes the minister's advice that the weight of the tobacco and whether a 'reasonable suspicion' exists are preconditions to offences for which the defendant's state of mind is not relevant, and it is therefore appropriate to apply absolute liability to these matters.

2.178 With respect to the weight of the tobacco, the committee notes the minister's advice that weight is an objective and important indicator of the seriousness of the relevant offences, and that it is appropriate and intended that the specified consequences should apply irrespective of whether the defendant mistakenly believed that the quantity of tobacco involved was smaller. The committee also notes the minster's advice that this approach is consistent with the approach taken for offences involving commercial or marketable quantities of drugs.

2.179 The committee further notes the minister's advice that a custodial penalty may only be imposed for illicit tobacco offences involving quantities of tobacco weighing 250 kilograms or more, and that because offences of this nature require large scale activities and organisation it is appropriate that absolute liability apply to the weight of the tobacco. The committee also notes the minister's advice that only pecuniary penalties apply to offences involving tobacco weighing five kilograms or more, as well as advice that a person controlling tobacco weighing five kilograms or more^[95] would be aware that serious consequences arise from possessing this quantity of tobacco without having reason to believe that duty has been paid or is not payable.

2.180 Finally, the committee notes the minister's advice that the offences applying absolute liability to the weight of the tobacco either require the prosecution to prove that duty was required to be paid and has not been paid, or include a defence that will apply if the individual reasonably believed that duty had been paid or was not payable. The committee notes the minister's advice that a person can therefore only be convicted of one of these offences as a result of a mistaken belief about weight if they either knew duty had not been paid or did not reasonably believe that duty was paid or was not payable.

2.181 With respect to the element of 'reasonable suspicion', the committee notes the minister's advice that this element is an entirely objective matter going to the circumstances in which the tobacco is held or otherwise dealt with, rather than to the state of mind of the defendant. The committee also notes the minister's advice that it is not relevant whether the defendant had a reasonable suspicion or was aware of the factor or factors that gave rise to the suspicion—it is sufficient that the relevant factor or factors existed.

2.182 The committee further notes the minister's advice that all of the offences for which reasonable suspicion is an element include a defence that will apply if a person reasonably believes that duty has been paid or is not payable. The committee notes the minister's advice that this goes beyond the defence of mistake of fact and ensures that a person will not be subject to the offence even if the person may be aware of a factor that might give rise to a reasonable suspicion.

2.183 Finally, the committee notes the minister's advice that, to the extent that a person may have made a mistake of fact about a matter giving rise to reasonable suspicion, but does not believe that duty has been paid or was not payable, then their mistake does not affect their culpability but only goes to the circumstances. In this regard, the committee notes the example provided by the minister that it would not be appropriate for a person's belief that they have properly packaged illicit tobacco to allow them to escape liability for an offence in relation to tobacco on which they believe duty has not been paid.

2.184 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.185 In light of the detailed explanation provided by the minister, the committee otherwise makes no further comment on this matter.

Reversal of the evidential burden of proof^[96]

2.186 As noted above, proposed Subdivisions 308-A and 308-B seek to create a number of offences relating to the possession, purchase, sale, manufacture and production of tobacco. The penalties imposed in relation to those offences vary depending on the weight of the tobacco in question, and range from the greater of 200 penalty units and five times the excise duty that would be payable on the tobacco, to 10 years imprisonment, the greater of 1,500 penalty units and five times the excise duty that would payable on the tobacco, or both. Proposed Subdivision 308-C seeks to create two offences relating to the possession of equipment for the manufacture or production of tobacco. Those offences are punishable by imprisonment for 12 months, 120 penalty units, or both

2.187 In relation to each of the proposed offences, the bill proposes to include exemptions (offence-specific defences). The following exemptions are included in relation to all of the offences in proposed Subdivision 308-A, as well as in relation to a number of the offences in proposed Subdivision 308-B:^[97]

• that the tobacco is kept or stored at premises specified in a licence under the Customs Act or the Excise Act;^[98]

• that the defendant is specified in a movement permission under the Customs Act or the Excise Act, or has an authority to take the tobacco into warehousing under the Customs Act;^[99] and

• that the defendant has permission under the Excise Act to possess, move or transfer the tobacco, or to deliver the tobacco for home consumption.^[100]

2.188 With respect to the offences in proposed Subdivision 308-A, the bill provides an additional defence. The defence applies where excise or customs duty has been paid, where there is an exemption to the payment of excise or customs duty under a law of the Commonwealth, or where the defendant has reasonable grounds to suspect that one of those circumstances exists.^[101]

2.189 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

2.190 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

2.191 While in these instances the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. Additionally, the committee notes that the Guide to Framing Commonwealth Offences^[102] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the relevant offence) where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

2.192 With respect to the defences in proposed Subdivision 308-A, the explanatory memorandum states:

This is appropriate [that the defendant bears an evidential burden] given the knowledge that the defendant has concerning the possession, buying or selling of the tobacco, the capacity of defendants to provide that information, the difficulty of law enforcement agencies obtaining the information and the seriousness of the offence.
...
Having defences with an evidential burden of proof is appropriate and is consistent with the Guide to Framing Commonwealth Offences.^[103]

2.193 The explanatory memorandum indicates that this explanation also applies to the defences in proposed Subdivision 308-B.^[104] The explanatory memorandum does not provide further information about the defences in proposed Subdivisions 308-A and 308-B, merely restating the operation of the relevant provisions.

2.194 The committee notes the brief explanation in the explanatory memorandum. However, it remains unclear to the committee that all of the matters captured by the defences in proposed Subdivisions 308-A and 308-B would be peculiarly within the knowledge of the defendant. For example, the committee considers it likely that whether premises are covered by a licence, or whether a person is covered by movement permission, could be established by the prosecution through reasonable inquiries. The question of whether customs or excise duty has been paid, or whether an exemption exists to the payment of duty under a law of the Commonwealth (as a defence to the offences in proposed Subdivision 308-A) could similarly be established by the prosecution through reasonable inquiries.

2.195 The committee acknowledges that whether a person has reasonable grounds to suspect that excise or customs duty has been paid, or that an exemption to the payment of duty exists under a Commonwealth law (as a defence to the offences in proposed Subdivision 308-A), could in some circumstances be matters that are peculiarly within the knowledge of the defendant. However, the committee would expect a more detailed explanation of whether this is the case to be provided in the explanatory memorandum.

2.196 As the explanatory memorandum does not adequately address this issue, the committee requests the minister's more detailed justification for the reversal of the evidential burden of proof in the defences in proposed Subdivisions 308-A and 308-B. The committee's consideration of the appropriateness of provisions that reverse the evidential burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[105]

Minister's response

2.197 The minister advised:

Proposed Subdivision 308-A and 308-B create a range of offences that would apply to individuals that possess or otherwise deal with illicit tobacco.
As noted by the Committee, the Bill would also establish a range of defences to these offences, applying broadly if the tobacco is held, moved or otherwise dealt with under a permission, authority or licence that permits such dealings. The offences in Subdivision 308-A, which apply where there is a reasonable suspicion that excise or excise-equivalent customs duty was required to be paid and has not been paid also provide for a defence that would apply if excise or excise-equivalent customs duty has been paid or was not required to be paid on the tobacco, or the person reasonably believes that this was the case.
The Committee has sought further justification for why these defences are not instead elements of the offence.
I consider that the approach in the Bill is appropriate as the matters covered by the defences are peculiarly within the knowledge of the defendant and would create practical challenges for the prosecution to disprove.
In the case of the permission authority and licence defences, there are a wide range of provisions under which a person may have legal authority to hold, transport or otherwise deal with tobacco. Many of the provisions provide for ongoing or continuing authorities and apply both to activities of a person and their agents.
If tobacco is found in a defendant's possession, knowledge about the existence of any relevant authorisation (or at least of where details of such an authority may be obtained) will be peculiarly within the knowledge of the defendant. Absent evidence from the defendant, the prosecution will not have any knowledge about whether any specific provisions may apply but would need to consider each of the potentially applicable permissions. Checking a quantity of tobacco against each potentially applicable authorisation would impose a very significant burden on the prosecution that would be impractical to administer.
In the case of defences relating to excise or excise-equivalent customs having been paid or the defendant reasonably believing that this is the case, as the Explanatory Memorandum to the Bill outlines in paragraphs 1.11 to 1.12 and 1.46 to 1.48, the new 'reasonable suspicion' offences are being introduced in part because of evidentiary challenges proving these matters in relation to existing offences. Specifically, enforcement agencies advised that where tobacco was found in Australia, there were significant practical obstacles proving whether tobacco was illegally produced or manufactured in Australia (and so should have been subject to excise) or illegally imported to Australia (and so should have been subject to excise-equivalent customs duty).
Given this, including these elements or a similar element going to whether the defendant reasonably believed that duty had been or was not required to be paid in the new reasonable suspicion offences would have replicated existing problems. Instead, noting that details about the origins of the tobacco and the defendant's beliefs are readily accessible to the defendant, these matters have been addressed through the inclusion of specific defences.

Committee comment

2.198 The committee thanks the minister for this response. The committee notes the minister's advice that the reversal of the burden of proof in the defences in proposed Subdivisions 308-A and 308B is appropriate as the matters covered by the defences are peculiarly within the knowledge of the defendant and would create practical challenges for the prosecution to disprove.

2.199 With respect to the 'permission, authority and licence' defences, the committee notes the minister's advice that there a wide range of provisions under which a person may have the legal authority and where tobacco is found in a defendant's possession, knowledge about the existence of any relevant authorisation (or at least where details of such an authority may be obtained) 'will be peculiarly within the knowledge of the defendant'. The committee notes the minister's advice that, absent evidence from the defendant, the prosecution would not have any knowledge about whether any specific provisions apply but would need to consider each of the potentially applicable provisions which would impose a very significant burden on the prosecution that would be impractical to administer.

2.200 While noting the minister's advice, the committee remains concerned that the existence of an applicable authorisation, permission or licence does not appear in all cases to be a matter that is peculiarly within the knowledge of the defendant, as whether an authorisation has been granted would, for example, appear to be a matter of which the person or entity granting the relevant authorisation would be particularly apprised.

2.201 With respect to the defences relating to whether excise or excise-equivalent customs duty has been paid or is not payable, or the defendant reasonably believes this to be the case, the committee notes the minister's advice that the new 'reasonable suspicion' offences in proposed Subdivision 308-A^[106] are being introduced in part because of evidentiary challenges in proving these matters in relation to existing offences. The committee notes the advice that enforcement agencies have advised that, where tobacco was found in Australia, there were significant practical obstacles in proving whether the tobacco was illegally produced or manufactured in or imported to Australia, and whether the tobacco should therefore have been subject to excise or customs duty.

2.202 The committee further notes the minister's advice that including the matters of whether excise or customs duty had been paid or was not payable and whether the defendant reasonably believed this to be the case, as elements of the 'reasonable suspicion' offences in proposed Subdivision 308-A would replicate existing problems. The committee also notes the advice that these matters have therefore been included as offence-specific defences—in light of the fact that the origins of the tobacco and the defendant's beliefs about the payment of excise duty are readily accessible to the defendant.

2.203 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.204 In light of the information provided by the minister, the committee makes no further comment on the reversal of the evidential burden of proof in the defences to the 'reasonable suspicion' offences in proposed Subdivision 308-A.^[107]

2.205 The committee otherwise draws its scrutiny concerns regarding the remaining defences (the 'permission, authority and licence' defences) in proposed Subdivisions 308-A and 308-B to the attention of senators, and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in those provisions.

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[86] See correspondence relating to Scrutiny Digest No. 5 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[87] Schedule 1, item 6, proposed Subdivisions 308-A and 308-B. The committee draws senators' attention to the provisions in those proposed subdivisions pursuant to Senate Standing Order 24(1)(a)(i).

[88] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 22–25.

[89] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[90] Explanatory memorandum, p. 23.

[91] Under proposed section 308-20, 308-35, 308-50 or 308-120.

[92] Explanatory memorandum, p. 16.

[93] Explanatory memorandum, p. 17.

[94] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 22-25.

[95] The minister has advised that five kilograms of tobacco represents the equivalent of 7,000 cigarettes, and would attract an excise duty of over $4,500.

[96] Schedule 1, item 6, proposed Subdivisions 308-A, 308-B and 308-C. The committee draws senators' attention to the provisions in those proposed subdivisions pursuant to Senate Standing Order 24(1)(a)(i).

[97] The exemption relating to permission under the Excise Act to possess, move or transfer the tobacco, or to deliver the tobacco for home consumption, does not apply to the offences in proposes sections 308-125, 308-130 and 308-135.

[98] See proposed subsections 308-10(7), 308-15(7), 308-20(7), 308-25(7), 308-30(7), 308-35(7), 308-40(7), 308-40(7), 308-45(7), 308-50(7), 308-110(6), 308-115(6), 308-120(6), 308-125(6), 308-130(6) and 308-135(6).

[99] See proposed subsections 308-10(8), 308-15(8), 308-20(8), 308-25(8), 308-30(8), 308-35(8), 308-40(8); 308-40(8), 308-45(8) and 308-50(8), 308-110(7), 308-115(7), 308-120(7),

308-125(7), 308-130(7) and 308-135(7).

[100] See proposed subsections 308-10(9), 308-15(9), 308-20(9), 308-25(9), 308-30(9), 308-35(9), 308-40(9); 308-40(9), 308-45(9) and 308-50(9), 308-110(8), 308-115(8) and 308-120(8).

[101] See proposed subsections 308-10(10), 308-15(10), 308-20(10), 308-25(10), 308-30(10),

308-35(10), 308-40(10), 308-40(10), 308-45(10) and 308-50(10).

[102] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.

[103] Explanatory memorandum, p. 24.

[104] Explanatory memorandum, p. 31 (paragraph 1.132).

[105] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.

[106] The committee notes that the defences relating to whether excise or excise-equivalent customs duty has been paid (or is not payable), or the defendant reasonably believing this to be the case, apply only in relation to the 'reasonable suspicion' offences in proposed Subdivision 308-A.

[107] The defences to the 'reasonable suspicion' offences appear in proposed subsections 308-10(10), 308-15(10), 308-20(10), 308-25(10), 308-30(10), 308-35(10), 308-40(10), 308-40(10), 308-45(10) and 308-50(10).