An Act relating to Distillation
Part I—Introductory
1 Short title [see Note 1]
This Act may be cited as the Distillation Act 1901.
2 Commencement [see Note 1]
This Act shall commence on a day to be fixed by Proclamation.
3 General administration of Act
The CEO has the general administration of this Act.
4 Act to apply
This Act shall apply to the distillation of spirits on which any duty of Excise is imposed by the Parliament.
5 Ordinary course of distillation
For convenience in interpreting this Act the present ordinary course of and in connexion with the distillation of spirits is outlined as follows:
(i) The material is mashed in a mash tun. The liquor product is wort;
(ii) The wort is fermented in a back. The liquor product is wash;
(iii) The wash is distilled in a still by heating to evaporation and condensing the vapor. The liquor product is spirits and the residue of the wash is spent wash;
(iv) The spirits pass into a receiver which may be of three kinds:
(a) Low wines receiver for the receipt of low wines. These are spirits of the first extraction requiring further distillation. All spirits received into a low wines receiver are low wines;
(b) Feints receiver for the receipt of feints. These may include low wines and are spirits requiring further distillation. All spirits received into a feints receiver are feints;
(c) Spirits receiver for the receipt of spirits not requiring further distillation;
(v) When liquor has been previously fermented it can be immediately utilized as wash.
6 Interpretation
(1) In this Act except where otherwise clearly intended:
Alcohol means ethyl alcohol.
Australian brandy means brandy the produce of Australia.
Australian wine means wine the produce of Australia.
Back means any vessel in which wort is deposited for the purpose of fermentation.
By authority means by the authority of an officer doing duty in the matter in relation to which the expression is used.
CEO means the Commissioner of Taxation.
Collector has the same meaning as in the Excise Act 1901.
Distiller means a person who holds a spirit maker’s licence issued pursuant to this Act.
Distillery means the licensed premises of a distiller.
Experimenter means a person who holds an experimenter’s licence issued pursuant to this Act.
Feints means spirits received into the feints receiver.
Fuel ethanol means denatured ethanol for use as a fuel in internal combustion engines.
Gazette Notice means a notice signed by the CEO and published in the Gazette.
Illicit spirits means spirits distilled moved altered or interfered with in contravention of this Act.
Illicit still means a still made, removed, set up, erected, sold or otherwise disposed of, purchased or otherwise acquired, imported, or in the possession or custody, or under the control, of a person, in contravention of this Act.
Lees of wine includes grape skins and other residue from wine making.
Low wines means spirits of the first extraction received into the low wines receiver.
Material store means a store in a distillery for the storage of material for distillation.
Methylate means to mix spirits with some substance in such manner as to render the spirits unfit for use as a beverage or in food and incapable of being converted to that use.
officer means a person employed or engaged under the Public Service Act 1999 who is:
(a) exercising powers; or
(b) performing functions;
under, pursuant to or in relation to a taxation law (as defined by the Taxation Administration Act 1953).
Operations includes all stages processes or operations in the course of or in connexion with the distillation of spirits.
Permission means the written permission of the Collector.
Plant includes machinery apparatus vessels utensils fittings and plant of all kinds.
Spent wash means the liquor which remains after the spirits have been extracted by distillation.
Spirit store means a store for the storing of spirits.
Spirit warehouse means a warehouse in distillery upon a distiller’s premises in which spirits may be warehoused without payment of duty.
Spirits includes any liquor on which, under the name of spirits, any duty of Excise is imposed by the Parliament, whether the liquor is distilled or made or in any stage of distillation or making.
Still means any apparatus for or capable of distilling spirits and any part thereof and any apparatus connected or used in connexion therewith.
Still house means the house or room in a distillery where distillation is carried on.
This Act includes the regulations.
Vigneron means a person to whom a vigneron’s licence under this Act has been granted.
Wash means the liquor from mashed material after it has commenced to ferment and before it has been distilled.
Wine means an alcoholic beverage produced by the complete or partial fermentation of:
(a) grapes;
(b) products derived solely from grapes; or
(c) both grapes and such products.
Wort means the liquor from mashed material before it has commenced to ferment.
(2) For the purposes of this Act:
(a) the volume of alcohol contained in any liquor or other substance shall be taken to be the volume that would be the volume of that alcohol if the alcohol were measured at a temperature of 20 degrees Celsius; and
(b) a calculation made for the purpose of ascertaining the volume of alcohol by reference to the specific gravity of alcohol shall be made on the basis that, at a temperature of 20 degrees Celsius and in vacuum, the specific gravity of alcohol in relation to water is 0.79067.
(2A) Subject to the requirements of subsection (2), the volume of alcohol (whether so called or whether referred to as the strength of spirits) contained in any goods may be ascertained in accordance with the rules (if any) made for that purpose under section 77FB of the Excise Act 1901.
(2B) If the circumstances set out in section 77FA of the Excise Act 1901 apply, the volume of alcohol contained in any goods, for the purpose of working out the duty payable on them, is to be ascertained in accordance with that section.
(3) For the purposes of this Act, where the Schedule to the Excise Tariff Act 1921 applies in respect of goods specified in that Schedule under the name of spirits, duty of Excise shall be taken to be imposed by the Parliament on those goods notwithstanding that the word “Free” is specified in the column headed “Rate of Duty” in that Schedule as the rate of duty chargeable on those goods.
8 Incorporation of provisions of the Excise Act
(1) Parts II, V, VI, VIII, IX, X, XI, XII and XIV (other than section 162B) of the Excise Act 1901, except so far as they are inconsistent with this Act, are incorporated and shall be read as one with this Act.
(2) For the purposes of this section:
(a) a reference in the Excise Act 1901 to a manufacturer shall be read as a reference to a distiller and to a vigneron;
(b) a reference in that Act to a factory shall be read as a reference to a distillery and to premises in respect of which a vigneron’s licence is in force under this Act; and
(c) a reference in that Act to excisable goods shall be read as a reference to spirits.
9 Parts IV and V apply to spirit makers only
Parts IV and V apply only to distillers holding spirit makers’ licences.
9A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Stills
10 Making, selling or importing stills
No person shall without permission:
(a) Make or commence to make any still;
(b) Remove or set up or erect any still;
(c) Sell or otherwise dispose of, or purchase or otherwise acquire, any still, either by itself or with other property, or as part of any premises;
(d) Import any still.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
11 Use of stills for purposes other than the distillation of spirits
(1) A person shall not use a still for a purpose other than the distillation of spirits unless the person has given notice to the Collector, in accordance with subsection (2), of his or her intention to use the still for that purpose.
(2) A notice under subsection (1) shall specify:
(a) the size or capacity of the still;
(b) the purpose for which the still is intended to be used; and
(c) the place where the still is intended to be used.
(3) A still that is used in contravention of this section shall be deemed to be an illicit still.
Note: As a result of this subsection, use of a still in contravention of this section is an offence under section 74.
(4) An offence under section 74 as a result of the operation of subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
11A Stills of a capacity not exceeding 5 litres
The provisions of sections 10 and 11 do not apply to or in relation to a still of a capacity not exceeding 5 litres.
Part III—Licences
12 Distillation of spirits
A person shall not distil spirits unless the person is licensed under this Act so to do or otherwise than in accordance with the licence granted to the person under this Act.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
13 Descriptions of licences
Licences to distil shall be divided into the following classes:
(a) Spirit makers’ licences:
(1) General licences authorizing the licensee to distil spirits from any material.
(2) Wine distillers’ licences authorizing the licensee to distil spirits from wine or lees of wine;
(b) Vignerons’ licences authorizing the licensee to distil spirits from wine or lees of wine for the purpose of fortifying wine;
(c) Experimenters’ licences authorizing the licensee to distil spirits from any material for the purpose of research into the production or use of fuel ethanol, including research relating to the development of technology for such production or use.
16 Licence fees
(1) The annual fees for licences shall be as prescribed.
(2) Until otherwise prescribed the amount of the fees for licences shall be in accordance with the scale in Schedule I to this Act.
17 Applications
Applications for licences may be made to the Collector and shall be in the form and be accompanied by the particulars prescribed.
18 Applicant to pay licence fee and give security
(1) The applicant for a licence shall pay to the Collector the prescribed licence fee and shall give security to the Collector for compliance with this Act in accordance with the scale prescribed.
19 Form of security
A security shall be given in a manner and form approved by the Collector and may, subject to that approval, be by bond, guarantee, cash deposit or any other method, or by two or more different methods.
20 Collector to grant licence
(1) The Collector if satisfied that the application ought to be granted may grant a licence to the applicant, but if the application is refused the licence fee shall be returned to the applicant.
(2) The Regulations shall prescribe the number of experimenters’ licences that may be in force at any one time, and the Collector shall not grant an experimenter’s licence if that number of such licences is in force.
21 Period of licences
Licences shall unless previously cancelled remain in force until
31 December next after the granting of the licence.
22 Renewal of licences
(1) Licences may be renewed by the Collector upon an application for renewal before the expiry of the licence sought to be renewed and on payment of the annual licence‑fee:
Provided that the Collector may in exceptional circumstances extend for a period not exceeding 7 days the time within which application for renewal of the licence and payment of the licence fee shall be made.
(2) The liability of the subscribers to the security given in respect of the original licence shall, in the absence of any notice of termination on the part of the subscribers, remain in full force for the period for which the licence is renewed.
23 Fresh security
The Collector may require the applicant for the renewal of a licence to give fresh security, and if fresh security is not given accordingly may refuse to renew the licence.
24 Transfer and cancellation
(1) Licences may be transferred by permission on security being given by the transferee and may be cancelled by the CEO by Gazette notice if the licensee is convicted of any offence against this Act.
(2) Without limiting subsection (1), the Collector may, by notice published in the Gazette, cancel an experimenter’s licence if:
(a) 6 months after the issue of the licence, the licensee has not commenced the distillation authorized by the licence;
(b) the licensee has completed that distillation;
(c) the licensee has discontinued that distillation;
(d) the licensee has suspended that distillation for longer than 6 weeks; or
(e) the licensee is convicted of any offence against this Act.
Part IV—Regulation of distilleries
30 Facilities to officers
Every distiller shall provide all reasonable facilities for enabling officers to exercise their powers under this Act.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
33 No other trade to be carried on upon the premises
No business, trade, or work other than that of a distiller shall be carried on in a distillery without the permission in writing of the Collector.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
34 Distillation only on licensed premises
No distiller shall distil spirits on any premises other than the distiller’s distillery.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
36 No alteration to be made in premises without permission
No person shall:
(i) Without permission use any place or plant in a distillery for any purpose other than that set out in the application for the licence or the plans models or description accompanying the application;
(ii) Alter the size or position of any place or plant in a distillery without first submitting a plan or description of the proposed alteration, nor without permission to make such alteration;
(iii) Bring into, or have in a distillery any plant which is not specified in the application for a licence or in the permission;
(iv) Without the written permission of the CEO first obtained place any pipe or tube used in a distillery below the surface of the ground unless it is enclosed in a wooden case, capable of being easily opened, so that the pipe or tube may be readily exposed to view;
(v) Place, affix, or make any cock, plug, pipe, or opening in, on, to, into, or from any vessel or utensil in a distillery in contravention of this Act;
(vi) Make or use any cover, fastening, cock, plug, or pipe so that any vessel or utensil in a distillery can be employed, opened, removed, filled, or emptied in contravention of this Act.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
37 Methylation
A distiller may in the manner and subject to the conditions prescribed methylate spirits in the distiller’s distillery.
38 Responsibility of distillers
Every distiller is responsible for the safe custody of all material, wort, wash, low wines, feints, and spirits in the distiller’s distillery and for the observance of this Act within the distiller’s distillery.
Part V—Removal of spirits, and computation and payment of duty
47 Obscuration
If, in the opinion of the Collector, the strength of any spirits cannot immediately be accurately ascertained by application of the rules, (if any) made for that purpose under section 77FB of the Excise Act 1901, the strength may be ascertained after distillation or in any prescribed manner.
50 Deficiencies
(1) If a Collector is satisfied that, having regard to the quantity and alcoholic strength of the materials from which spirits have been distilled, the quantity of spirits produced in a distillery is less than the quantity which should have been produced, the Collector shall serve upon the distiller an account showing the amount of the deficiency.
(2) The distiller shall, unless he or she accounts for the deficiency to the satisfaction of the Collector, forthwith pay to the Commonwealth an amount equal to the amount of the Excise duty which, in the opinion of the Collector, would have been payable in respect of a quantity of spirits, equal to the amount of the deficiency, if those spirits had been entered for home consumption by the distiller on the day on which the account was served.
(3) Where an account is served upon a distiller under subsection (1), the distiller shall not, without the consent of the Collector, carry on any operations in, or make a removal of spirits from, the distillery until the distiller has complied with subsection (2).
51 Loss during distillation
If whilst any operation is being carried on any loss of vapour or spirits takes place by unavoidable accident before the spirit reaches the spirit receiver, and notice of such accident is immediately on its discovery given to an officer, the officer shall inquire into the circumstances of the accident and report to the Collector, who may remit the duty on the quantity of spirit lost, but in default of such immediate notice no allowance for loss shall be made.
Part VI—Vignerons
54 Distilling from and fortifying
(1) A vigneron’s still must not be used for distilling spirits from any material other than wine, or lees of wine.
Penalty: 10 penalty units.
(2) Spirits made by vignerons must be used only to achieve the result of fortifying Australian wine or as may be prescribed.
Penalty: 10 penalty units.
57 Control of spirits
All spirits distilled by vignerons until used for fortifying wine or until delivered in manner prescribed shall be subject to the CEO’s control, and shall not be moved altered or interfered with except by authority and in accordance with this Act.
Penalty: 200 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Part VIA—Fortification of Australian wines
57A Application of Part
This Part applies to and in relation to the fortification of Australian wine with spirit:
(a) which is subject to the CEO’s control; or
(b) in respect of which an entry, specifying that the spirit is for use for fortifying Australian wine, has been made.
57B Interpretation
In this Part, fortifying spirit means:
(a) a spirit distilled from wine or other products of wine making, being a spirit that contains not less than 74% by volume of alcohol; or
(b) Australian brandy that has been matured by storage in wood for a period of not less than 2 years, being brandy that contains not less than 57% by volume of alcohol and the flavouring and colouring matter (if any) in which are of kinds approved by the Collector for the purposes of this definition and do not cause obscuration of the strength of the brandy exceeding 1.7%.
58 Strength of spirits for fortifying
Unless otherwise prescribed no spirits shall be used for fortifying wine unless they are approved by an officer.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
59 Maximum strength of wine
(1) Subject to this section, Australian wine shall not be fortified:
(a) so as to contain more than 23% by volume of alcohol; or
(b) with any spirit other than fortifying spirit.
(2) Notwithstanding subsection (1), Australian wine which is intended for export may, with the written approval of the Collector given before the wine is fortified, be fortified so as to contain more than 23% by volume of alcohol.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Part VII—Powers of officers
Division 1—Preliminary
59A Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege.
Division 2—General regulatory powers
60 Access to distilleries and books
Officers shall at all times have complete access to every part of all distilleries or premises on which a still is kept, and may examine, gauge, re‑test, take account of, and note any plant, materials, and spirits in the distillery or premises, and may examine and take copies of, or extracts from, all books and accounts required to be kept by the distiller for the information of the officers and of all books kept by the distiller in relation to the distillery or the making or sale of spirits.
62 Vessels to be emptied and cleaned
For the purpose of testing the quantity of alcohol in any wash by distillation an officer may require any charger or receiver to be emptied and cleaned and any quantity of the wash to be distilled and the produce to be conveyed into the charger or receiver.
For this purpose the distiller shall on request and on reasonable notice provide the officer with assistance.
All low wines feints or spirits so distilled and conveyed into a charger or receiver shall be kept therein unmixed and unaltered until the officer has taken an account of the quantity and strength thereof.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
63 Samples
Any officer may take a sample of wort wash low wines feints or spirits from any vessel and the strength of any sample so taken shall be deemed the strength of the whole of the contents of the vessel from which it is taken.
A distiller may before any such sample is taken stir up and mix together all the liquor contained in the vessel from which the sample is to be taken.
69 Power to lock
Any officer may lock up seal mark fasten or otherwise secure any plant in or on any distillery or premises on which a still is kept and any seized goods; and no such lock, seal, mark, or fastening shall be opened, altered, broken, or erased except by authority.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Division 3—Miscellaneous
70 Official stills
Nothing in this Act shall prevent the use of stills by officers for official purposes, or with permission by any public department of a State, or for any official educational or testing purposes.
71 Power to purchase samples
No person being the owner of or in possession of any wine or spirits or of any liquor which an officer has reasonable ground to suspect is wine or spirits shall refuse to deliver to an officer samples of such wine, spirits or liquor on tender of a reasonable price for such samples.
Penalty: 10 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Part VIII—Penal provisions
73 Forfeiture
The following are forfeited to the Crown:
(i) All illicit stills, and other stills in which spirits have been distilled in contravention of this Act;
(ii) All illicit spirits, and the vessels in which they are contained;
(iii) All material capable of being used in the course of or in connexion with the distillation of spirits found on any premises on which there is an illicit still;
(iv) All vehicles, boats and animals conveying or having on board, or having packed therein or thereon, any illicit still or illicit spirits, and all animals and harness used in drawing any such vehicle;
(v) All wort and all wash removed from a distillery except by authority;
(vi) All low wines, feints, or spirits in any receiver or charger with which or to which any substance has been mixed or added except by authority which increases their specific gravity or prevents their true strength from being ascertained;
(vii) All wort or wash in a distillery the gravity of which cannot be correctly ascertained by the prescribed saccharometer;
(viii) All wort, wash, or fermented liquor unlawfully in a distillery;
(ix) All spirits found in any distillery elsewhere than in the proper charger, receiver, spirit store, or spirit warehouse;
(x) All spirits to which wine has been added for the purpose of breaking down or reducing the strength of the spirits.
73A Unlawful possession of still
(1) A person, not being a distiller or a vigneron, shall not, without permission, have any still in his or her possession or custody or under his or her control.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(2) A distiller or a vigneron must not, without permission, possess, or have the custody or control of, any still except at the distillery, or at the premises to which the vigneron’s licence relates, as the case may be.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
(3) This section does not apply to or in relation to a still of a capacity not exceeding 5 litres.
74 Offences as to illicit stills
No person shall:
(1) Use an illicit still;
(2) Make any illicit spirits;
(3) Supply the means or materials for establishing, maintaining, or working any illicit still;
(4) Receive, carry, convey, or conceal, or have on the person’s premises, or in the custody, or under the control, of the person, any illicit spirits;
(5) Be found in any place where distillation is being illegally carried on;
(6) Sell or dispose of any illicit spirits;
(7) Purchase any illicit spirits knowing them to be illicit spirits;
(8) Make, sell, or have in his or her possession or custody or control any wash or wort intended for distillation by an illicit still.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
77A Removal of spirits when licence ceases to be in force
Where a licence has been cancelled, or a licence has expired and has not been renewed, a person shall not, except by authority, remove, or cause to be removed, spirits on which duty has not been paid from the premises that were, under the licence, the licensed premises of the holder of the licence.
Penalty: 50 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Part IX—Miscellaneous
82 Removal of spirits on cancellation etc. of licence
(1) Where a licence has been cancelled, or a licence has expired and has not been renewed, the Collector may cause any spirits, being spirits on which duty has not been paid, on the premises that were, under the licence, the licensed premises of the holder of the licence, and, if the Collector thinks fit, the vessels and packages in which those spirits are contained, to be removed to a warehouse or such other place of security as the Collector thinks fit.
(2) Unless, within 6 months after the removal of spirits, vessels and packages under subsection (1):
(a) they are claimed, in writing, by the person entitled to them; and
(b) the duty, expenses of removal, warehouse rent and charges and other storage charges (if any) on or in respect of them are paid;
they may be sold by the Collector.
(3) The duty to be paid on spirits claimed under subsection (2) shall be calculated at the rate in force at the time when the duty is paid.
82A Sale by Collector of removed spirits etc.
(1) Spirits, vessels and packages which the Collector is authorized to sell by section 82 (in this section referred to as removed goods) shall not be sold except by auction or by tender and after such public notice as is prescribed or, if no such notice is prescribed, after reasonable public notice.
(2) Removed goods may be sold either free of duty or subject to duty.
(3) The conditions on which removed goods are offered for sale shall include conditions that no bid or tender shall necessarily be accepted and that upon the acceptance of a bid or tender the successful bidder or tenderer shall pay the price in cash forthwith.
(4) If no bid or tender satisfactory to the Collector is made or received, removed goods may be re‑offered for sale until such a bid or tender is made or received.
(5) The proceeds of a sale of removed goods by the Collector shall be applied:
(a) in payment of the expenses of the sale;
(b) unless the goods are sold subject to duty, in payment of the duty on the goods;
(c) in payment of the expenses of the removal of the goods in pursuance of section 82; and
(d) in payment of the warehouse rent and charges and other storage charges (if any) in respect of the goods;
in that order, and the balance, if any, shall be paid to the Minister for Finance on account of the person entitled to it.
(6) The rate of duty applicable to removed goods sold by the Collector is the rate in force at the time of the sale.
82B Review of decisions
(1) A person who is dissatisfied with a decision that applies to the person may object against the decision, in the manner set out in Part IVC of the Taxation Administration Act 1953, if the decision is one of the following:
(a) a decision of the Collector under section 20, 22, or 23; or
(b) a cancellation of a licence by the CEO under section 24.
(2) In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
83 Regulations
The Governor‑General may make regulations not inconsistent with this Act for prescribing all matters which by this Act are required or permitted to be prescribed or which may be necessary or convenient to be prescribed for giving effect to this Act.
