Issue
Can a permission to possess tobacco seed, plant, seed or leaf granted to a person who does not hold a producer, dealer or manufacturer licence be subject to conditions or restrictions?
Decision
Yes. A permission to possess tobacco seed, plant or leaf granted to a person who does not hold a producer, dealer or manufacturer licence can be subject to conditions or restrictions.
Facts
A person held a producer licence granted under Part IV of the Excise Act 1901 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 seed and plant.
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 see, 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, tobacco seed, tobacco plant or tobacco leaf.
Although the Act does not provide the Commissioner with an express power to grant permission to an unlicensed person to possess tobacco seed, plant or leaf, the fact that section 117C of the Excise Act provides that it is not an offence if permission has been obtained is sufficient to conclude that the Commissioner has the power to grant such permission.
As there is no explicit power to grant the permission, the Act does not address whether such permission can be granted subject to conditions or restrictions. By contrast, the Act provides the Commissioner with the express power to issue licences and movement permissions subject to conditions.
As the person no longer holds a relevant licence they will be committing an offence if they possess tobacco seed, plant or leaf without permission. It is reasonable to conclude that any permission granted by the Commissioner under section 117C of the Excise Act may be issued subject to various conditions. Otherwise, the Commissioner would have no option but to grant a carte blanche permission to possess tobacco seed, plant or leaf regardless of its origin, the manner in which the goods are secured, or any other pertinent factors. It follows that the Commissioner may condition the granting of a permission for the purposes of section 117C. Such conditions could include: • the time that the permission is valid for • the place where possession is allowed, or • the manner in which the goods are secured.
Accordingly we conclude that a permission to possess tobacco seed, plant or leaf granted to a person who does not hold a producer, dealer or manufacturer licence can be subject to conditions or restrictions.