Version No. 054
Business Franchise (Tobacco) Act 1974
No. 8597 of 1974
Version incorporating amendments as at 1 March 2010
table of provisions
SectionPage
1
SectionPage
1Short title and construction
2Definitions and references
2AABusiness Franchise Acts not to apply so as to exceed powers
2AMembership of a group of wholesale tobacco merchants
2BGrouping of corporations and where employees used in
another business
2CGrouping of commonly controlled businesses
2CAControlling interest
2DSmaller groups subsumed into larger groups
2EBeneficiaries under discretionary trusts
3Repealed
4Administration
5Secrecy provisions
5AA–13D Repealed
14Inspections
15Power to Commissioner to obtain information
15AWarrant to search for and seize books etc.
15BForfeiture of tobacco and petroleum products
16Objections
16AObjection to certain decisions or determinations
17Appeals
18Procedure on appeal
18APowers of Tribunal on review
18BHearing of appeal by the Court
18CRecovery of amount assessed pending review or appeal
18CAProvision of this Act to prevail
18DRepealed
18EInterest payable on an assessment or amended assessment
18FCorrection of an error of calculation or mistake of fact
19, 19ARepealed
19AANotice of assessment or amended assessment
19ABRepealed
19BRecovery of assessed amounts, arranged amounts and interest
19BACommissioner may collect amounts from person owing money to relevant person
19BBSubstituted service
19BCRefund of payment
19CRepealed
19CARefunds to be paid to person entitled
19CBApplication of section 19CA to proceedings
19DCommissioner may seek injunction
19EEvidence
19EAPossession of tobacco or petroleum products
19FJudicial notice
19GContinuing offences
20Proceedings
21Service of notices
21ASupreme Court—limitation of jurisdiction
22Regulations
23Transitional provision
______
SCHEDULES
SCHEDULE 1—Warrant to enter premises
SCHEDULE 2—Repealed
═══════════════
ENDnotes
1. General Information
2. Table of Amendments
3. Explanatory Details
1
Version No. 054
Business Franchise (Tobacco) Act 1974
No. 8597 of 1974
Version incorporating amendments as at 1 March 2010
An Act with respect to the licensing of Persons who sell Tobacco in Victoria and for other purposes.
1
Business Franchise (Tobacco) Act 1974
No. 8597 of 1974
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
S. 1
amended by No. 9272
s. 15(a).
1Short title and construction
(1)This Act may be cited as the Business Franchise (Tobacco) Act 1974.
S. 1(2) inserted by No. 9272
s. 15(b).
(2)This Act and the Business Franchise (Petroleum Products) Act 1979 shall be read and construed as one and may be cited together as the Business Franchise Acts.
2Definitions and references
(1)In this Act unless inconsistent with the context or subject-matter—
S. 2(1) def. of associate inserted by No. 55/1995
s. 4(1).
associate has the meaning, in relation to a person, it would have under Division 2 of Part 1.2 of the Corporations Law if—
(a)for paragraphs (b) and (c) of section 12(1) of that Law, there were substituted—
"or
(b)whether the primary person is in a position to exercise certain powers in relation to a body corporate;"; and
(b)sections 13, 14, 16(2) and 17 of that Law were repealed;
S. 2(1) def. of Australian citizen inserted by No. 55/1995
s. 4(1).
Australian citizen has the same meaning as in the Australian Citizenship Act 1948 of the Commonwealth;
S. 2(1) def. of Australian resident inserted by No. 55/1995
s. 4(1).
Australian resident means an Australian citizen or a person who is ordinarily resident in Australia;
s. 2
S. 2(1) def. of Commis-sioner substituted by No. 40/1997
s. 138(Sch. 2 item 4.1).
Commissioner means Commissioner of State Revenue under the Taxation Administration Act 1997;
S. 2(1) def. of consume inserted by No. 66/1988
s. 4(1).
consume, in relation to tobacco means—
(a)smoke; or
(b)in the case of tobacco in the form of a powder, inhale; or
(c)chew or suck; or
(d)except in the definition of tobacco, give away;
S. 2(1) def. of Corporation inserted by No. 8838
s. 2(a)(i), substituted by No. 9699 s. 23, amended by No. 119/1994 s. 33(1)(a)(i).
Corporation has the same meaning as in section 9 of the Corporations Law;
S. 2(1) def. of correspond-ing law inserted by No. 55/1995
s. 4(1), repealedby No.83/2009 s.40.
*****
S. 2(1) def. of director inserted by No. 55/1995
s. 4(1).
director, in relation to a corporation, has the same meaning as in section 9 of the Corporations Law;
s. 2
inspector means an inspector appointed under section 14;
S. 2(1) defs of licence, licensed premises, licensee repealed by No. 94/1997
s. 8(a).
*****
S. 2(1) defs of listed company, major shareholder inserted by No. 10/1996
s. 4,
repealed by
No. 94/1997
s. 8(a).
*****
S. 2(1) def. of officer inserted by No. 9436
s. 2(1).
officer includes any person in the employment of the Government of Victoria receiving payment for his services from moneys voted by the Parliament of Victoria;
S. 2(1) def. of person inserted by No. 80/1994
s. 4(1)(a).
person includes a body or association (corporate or unincorporate) and a partnership;
premises includes a part of any premises;
S. 2(1) def. of prescribed quantity inserted by No. 101/1995
s. 4.
prescribed quantity, in relation to tobacco, means—
s. 2
(a)in the case of tobacco in the form of cigarettes—3500 cigarettes;
(b)in the case of tobacco in any other form—5 kilograms;
S. 2(1) def. of related body corporate inserted by No. 55/1995
s. 4(1).
related body corporate, in relation to a body corporate, has the same meaning as in section 9 of the Corporations Law;
S. 2(1) def. of road vehicle inserted by No. 101/1995
s. 4.
road vehicle means a vehicle designed solely or principally for transporting people, goods or animals by road;
S. 2(1) def. of sell
inserted by No. 55/1995
s. 4(1).
sell includes offer to sell;
S. 2(1) def. of share insertedby No. 55/1995
s. 4(1).
share has the same meaning as in section 9 of the Corporations Law;
S. 2(1) def. of State Taxation Act insertedby No. 55/1995
s. 4(1).
State Taxation Act has the same meaning as in the Taxation (Reciprocal Powers) Act 1987;
tobacco means tobacco prepared for consumption and includes any mixture that contains tobacco and is intended to be consumed;
S. 2(1) def. of tobacco retailing amended by Nos 88/1986
s. 37(a)(i), 80/1994
s. 4(1)(b).
tobacco retailing means the business of selling tobacco by retail either alone or in conjunction with any other merchandise and includes such business carried on as part of or in conjunction with any other business;
s. 2
S. 2(1) def. of tobacco wholesaling amended by Nos 88/1986
s. 37(a)(ii), 66/1988 s.4(2), 80/1994
s. 4(1)(c).
tobacco wholesaling means the business of selling tobacco for the purposes of resale either alone or in conjunction with any other merchandise and includes such business carried on as part of or in conjunction with any other business;
S. 2(1) def. of Tribunal inserted by No. 52/1998
s. 311(Sch. 1 item 11.1).
Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;
S. 2(1) def. of transport-ation record inserted by No. 101/1995 s. 4,
repealed by No. 94/1997
s. 8(a).
*****
vending machine means any machine, device, or contrivance that is constructed to contain articles 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;
S. 2(1) def. of voting share inserted by No. 8838
s. 2(a)(ii), substituted by No. 9699
s. 23, amended by No. 119/1994 s. 33(1)(a)(ii).
voting share has the same meaning as in section 9 of the Corporations Law.
S. 2(2) amended by No. 9272
s. 15(c).
(2)References in the Business Franchise Acts to premises shall be read and construed as including references to 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 to any vehicle vessel or aircraft.
s. 2
(3)The presence on any premises of a vending machine from which tobacco may be obtained by an operation that involves the insertion in the machine of a coin, token, or similar object shall be deemed to constitute the carrying on on those premises by the occupier thereof of tobacco retailing unless the machine is owned and operated by a licensee in accordance with his licence.
(4)A reference in this Act to—
(a)a person who sells tobacco; or
(b)a person who carries on the business of selling tobacco—
does not extend to a person who, as an agent or employé of a person referred to in paragraph (a) or(b), sells tobacco or carries on such a business.
S. 2(5) amended by Nos 8746 s. 3, 9272 s. 15(c), repealed by No. 88/1986
s. 37(b), new
s. 2(5) inserted by No. 55/1995 s.4(2).
(5)For the purposes of this Act, a person whose name is endorsed on a group wholesale tobacco merchant's licence is deemed to hold that licence and a reference in this Act to a holder of, or a person who holds, a group wholesale tobacco merchant's licence includes a reference to each person whose name is endorsed on the licence.
S. 2(5A) inserted by No. 55/1995
s. 4(2).
(5A)For the purposes of this Act, the shares in a corporation to which a person is entitled include shares in the corporation to which the person is entitled in accordance with section 609 of the Corporations Law.
(6)A reference in this Act to tobacco includes a reference to any wrapping package or container in which the tobacco was sold purchased received or handled.
S. 2(6AA) inserted by No. 80/1994
s. 4(2).
s. 2
(6AA)A reference in this Act to the sale of tobacco is a reference to the sale of tobacco in Victoria.
S. 2(6AB) inserted by No. 80/1994
s. 4(2).
(6AB)A sale of tobacco made outside Victoria in the course of tobacco wholesaling or tobacco retailing shall for the purposes of this Act be regarded as having been made in Victoria if the terms (whether express or implied) of the sale or of any contract for the sale—
(a)require either party to deliver, or arrange delivery of, the tobacco into or within Victoria; or
(b)contemplate delivery of the tobacco into or within Victoria.
S. 2(6A) inserted by No. 8838
s. 2(b).
(6A)A reference in this Act to the relevant period in relation to—
S. 2(6A)(a) amended by Nos 9436
s. 2(2)(a), 9885 s. 4(2)(a)(i).
(a)a retail tobacconist's licence of the duration specified in section 9(1), a wholesale tobacco merchant's licence or a group wholesale tobacco merchant's licence which, if granted, will expire at the end of a month specified in Column 1 is a reference to the month last past specified opposite that first mentioned month in Column 2 of the Table hereunder—
s. 2
TABLE
Column 1 / Column 2July / May
August / June
September / July
October / August
November / September
December / October
January / November
February / December
March / January
April / February
May / March
June / April;
S. 2(6A)(b) amended by Nos 9436
s. 2(2)(b), 9885 s. 4(2)(a)(ii).
(b)a retail tobacconist's licence revocable at will issued pursuant to section 9(2) is a reference to the year ending on 30 September preceding the calendar year in which the licence, if granted, will be in force.
S. 2(7) amended by No. 9272
s. 15(d).
(7)The Business Franchise Acts bind the Crown.
S. 2AA inserted by No. 80/1994
s. 5.
2AABusiness Franchise Acts not to apply so as to exceed powers
s. 2AA
(1)If a provision of the Business Franchise Acts—
(a)would, apart from this section, have an invalid application; but
(b)also has at least one valid application—
it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.
(2)Despite subsection (1), the provision is not to have a particular valid application if—
(a)apart from this section, it is clear, taking into account the provision's context and the purposes or objects underlying the Business Franchise Acts, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of Victoria; or
(b)the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the legislative power of Victoria.
(3)Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).
(4)This section applies to a provision of the Business Franchise Acts, whether enacted before, at or after the commencement of section 5 of the Business Franchise Acts (Amendment) Act 1994.
(5)Nothing in this section affects the operation of section 6 of the Interpretation of Legislation Act 1984.
(6)In this section—
application means an application in relation to—
(a)one or more particular persons, things, matters, places, circumstances or cases; or
(b)one or more cases (however defined or determined) of persons, things, matters, places, circumstances or cases;
invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of Victoria;
valid application, in relation to a provision, means an application that, if it were the provision's only application, would be within the legislative power of Victoria.
S. 2A
inserted by No. 8838
s. 2(c).
2AMembership of a group of wholesale tobacco merchants
s. 2A
(1)For the purposes of this Act, a person is a member of a group of wholesale tobacco merchants—
(a)if—
(i)that person is one of the persons that constitute a group for the purposes of this Act;
(ii)one or more of the persons that constitute the group carried on tobacco wholesaling in the relevant period;
(iii)one or more of the persons that constitute the group intend to carry on tobacco wholesaling in the month or part of the month in respect of which an application for a licence is or is intended to be made under this Act; and
(iv)there is not in force a determination by the Commissioner that that person is not a member of the group; or
(b)if that person declares in writing that the organization or control of his business is such that he would have been a member of the group if it had been so organized or controlled during the relevant period and the other members of the group and the Commissioner agree that this is so.
S. 2A(2) amended by No. 9885
s. 3(a).
(2)The Commissioner may in his absolute discretion 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 has continuously carried on tobacco wholesaling independently of the group and will continue to carry on tobacco wholesaling independently of the group and is not subject to control by any other member of the group.
s. 2A
S. 2A(3) amended by No. 9885
s. 3(a).
(3)The Commissioner may in his absolute discretion by writing under his hand determine that a person who would, but for the determination, be a member of a group, is not a member of any group for the purposes of this Act if he considers that the person is not carrying on and has no intention of carrying on tobacco wholesaling.
S. 2A(4) amended by No. 9885
s. 3(a).
(4)The Commissioner may in his absolute discretion at any time revoke a determination made under subsection (2) or subsection (3).
(5)A determination made under subsection (2) or subsection (3) shall come into force on the making thereof and shall continue in force until it is revoked by the Commissioner.
(6)Notice of a determination under subsection (2) shall be given by the Commissioner 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.
(7)Notice of a determination under subsection (3) shall be published in the Government Gazette.
(8)Notice of the revocation of a determination made under subsection (2) or subsection (3) shall be given by the Commissioner to the person in respect of whom the determination was made and to all members of the group concerned whom he considers are carrying on tobacco wholesaling.
S. 2B
inserted by No. 8838
s. 2(c).
2BGrouping of corporations and where employees used in another business
s. 2B
S. 2B(1) amended by Nos 9272 s.15(e), 9699 s. 23, 119/1994
s. 33(1)(b).
(1)For the purposes of the Business Franchise Acts, two corporations constitute a group if they were at any time during the relevant period by reason of section 50 of the Corporations Law related to each other for the purposes of that Act.
S. 2B(2) amended by No. 9272
s. 15(e).
(2)For the purposes of the Business Franchise Acts, where at any time during the relevant period—
(a)an employé of an employer, or two or more employés of an employer, performed duties solely or mainly for or in connexion 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 had, in respect of the employment of, or the performance of duties by, one or more of his employés, 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—
constitute a group.
S. 2C
inserted by No. 8838
s. 2(c).
2CGrouping of commonly controlled businesses
s. 2C
(1)A reference in this section to two businesses does not include a reference to two businesses both of which are owned by the same person, not being a trustee, or by the trustee or trustees of a trust.
S. 2C(2) amended by Nos 9272
s. 15(e), 55/1995 s.5(a).
(2)For the purposes of the Business Franchise Acts, where the same person had, or the same persons had together at any time during the relevant period, a controlling interest, as referred to in section 2CA, in each of two businesses, the persons who carried on those businesses constitute a group.
S. 2C(3)–(6) repealed.[1]
*****
S. 2CA inserted by No. 55/1995
s. 6.
2CAControlling interest
s. 2CA
(1)A person has (or persons have together) a controlling interest in a business carried on by a corporation if—
(a)the directors; or
(b)any of the directors entitled to exercise a majority in voting powers 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 the person (or those persons acting together).
(2)A person has (or persons have together) a controlling interest in a business carried on by a corporation that has a share capital if the person (or those persons acting together) are entitled to half or more than half of the voting shares in that corporation.
(3)A corporation which, by virtue of this section, has a controlling interest in a business has a controlling interest in any other business in which a related body corporate has a controlling interest.
(4)A person has (or persons have together) a controlling interest in a business carried on by a partnership if the person (or those persons together)—
(a)owns or own, whether beneficially or not, half or more than half of the capital of the partnership; or
(b)is or are entitled, whether beneficially or not, to half or more than half of the profits of the partnership.
(5)A person has a controlling interest in a business if, whether or not the person is a trustee of a trust, the person is the sole owner of the business.
(6)Persons together have a controlling interest in a business if, being 2 or more trustees of a trust, they are the owners of the business.
(7)A person has (or persons have together) a controlling interest in a business carried on under a trust if the person is the beneficiary (or those persons are together the beneficiaries), whether or not as the trustee or trustees of another trust, in respect of half or more than half of the value of the interests in the trust first mentioned in this subsection.
(8)If—
s. 2CA
(a)by virtue of this section, a person has (orpersons have together) a controlling interest in a business; and
(b)the person or persons carrying on that business has or have together a controlling interest in another business—
the person or persons referred to in paragraph (a) has or have a controlling interest in the business referred to in paragraph (b).
(9)If—
(a)a person is a beneficiary (or persons together are the beneficiaries) under a trust, in respect of half or more than half of the value of the interests in the trust; and
(b)by virtue of this section, the trustee or trustees of the trust has or have together a controlling interest in a business—
the beneficiary has or the beneficiaries have a controlling interest in that business.
(10)A person who, as the result of the exercise of a power or discretion by—
(a)the trustee of a discretionary trust, acting alone or with another person; or