Issue
Can the Commissioner grant permission under the Excise Act 1901 to a person who does not hold a producer, dealer or manufacturer licence that allows the person to possess tobacco seed, plant or leaf?
Decision
Yes. The Commissioner can grant permission under the Excise Act to a person who does not hold a producer, dealer or manufacturer licence that allows the person to possess tobacco seed, plant or leaf.
Facts
A person held a producer licence, in accordance with Part IV of the Excise Act, to produce tobacco seed, tobacco plant and tobacco leaf.
The person did not apply to renew the licence and the licence has expired.
At the time the licence expired the person was in possession of tobacco seeds and plants.
The person has now applied for a new licence.
No decision has yet been made on the application for the new licence.
Reasons for Decision
The Excise Act provides for controls over the possession, movement and production of tobacco seed, plant and leaf.
Section 117C of the Excise Act makes it an offence for a person, who does not hold a producer licence, dealer licence or manufacturer licence, to possess, without permission, material that is tobacco seed, tobacco plant or tobacco leaf.
Neither section 117C of the Excise Act nor any other sections of the Act provide the Commissioner with an explicit power to grant permission to a person who does not hold a producer licence, dealer licence or manufacturer licence to possess tobacco seed, plant or leaf.
Even though the Act does not provide express power to grant permission to a person, who does not hold a licence, to possess tobacco plant, seed, or leaf, an offence under section 117C of the Excise Act is not committed if the possession is with permission. It is therefore reasonable to conclude that the Commissioner can grant this permission.
Accordingly the Commissioner can grant permission, to an unlicensed person, to possess tobacco seed, plant or leaf.