Last updated: August 2020 Suggested citation: Scollo, M, and Bayly, M. 13.2 Tobacco taxes in Australia. In Greenhalgh, EM, Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2020. Available from http://www.tobaccoinaustralia.org.au/chapter-13-taxation/13-2-tobacco-taxes-in-australia



Tobacco taxes are favoured by governments because of their relatively low level of unpopularity with voters (see Section 13.12 ) and because of their low administrative costs relative to the income they generate.1,2

A variety of taxes are applied to cigarettes and other tobacco products internationally. Virtually all countries apply excise duty specified as an amount payable per x number of cigarette sticks. A small number of countries charge excise payable per x grams of tobacco weight. Many countries also apply one or more forms of ad valorem taxes, that is, taxes based on the monetary value of products. These include taxes added to the wholesale value of product sold and sales tax or goods and service tax applied as a percentage to the (pre-tax) retail price.3,4

13.2.1 Federal excise and customs duty

The federal government has imposed excise duty on Australian-made and customs duty on imported tobacco products since the passage in 1901 of the Excise Act5 and the Customs Act.6 Prior to federation, the colonies imposed their own tariffs.7-9

Until 1999, federal excise and customs duty was calculated on the basis of the weight of tobacco products. The Excise Regulations, 1925,10 specified precisely how manufacturers needed to label, calculate and declare excise duty. These also specified how the weight of tobacco products (and the volume of alcohol and petroleum products) was to be calculated. For cigarettes, this included the weight of filter and paper, but not the weight of the packaging.

In the early years of last century, manufactured tobacco was charged at a rate of one shilling per pound (of product weight) and cigars were taxed at one shilling and sixpence per pound. Since 1920, the rate of the duty has been set out in (frequently amended) schedules to the Excise Tariff Act passed in 1921.11 Historically, duty on tobacco in cigarettes was levied at a higher rate than duty on non-cigarette tobacco (Table 13.2.1). In November 1983, the then federal treasurer, the Hon. Paul Keating, changed customs and excise policy in several ways. First, the rate of federal excise and customs duty was linked with the Australian Consumer Price Index (CPI),12 meaning that since that time, excise and customs duty have automatically increased twice each year. Between February 1984 and August 2013 these increases have been in line with changes in the CPI for the six months to the previous December and June. Since March 2014 increases have been in line with changes each six months between February and November in Average Weekly Earnings. Second, the rate of duty for cigars was immediately made equal to that of cigarettes. Third, the rate for non-cigarette tobacco was increased by $5 a kilo. In subsequent budgets the rate for smoking tobacco was increased further (by another $5 a kilo in the 1984 and 1985 budgets , and then by $1.90 in the 1986 budget).

Table 13.2.1 compares the excise duty on cigarettes with that on cigars and smoking tobacco in selected years since 1965. As can be seen in Table 13.2.1, rates for smoking tobacco became equal to that for cigarettes in 1986.

Table 13.2.1

Rates of federal excise duty, August, selected years 1965–87: cigarettes, cigars and tobacco, Australia

Historically, tobacco products produced in Australia were subject to a lower rate of duty than that applicable to imported tobacco products. Customs duty was brought into line with excise duty following the publication in June 1994 of a report of an inquiry by the Industry Commission into tobacco growing and manufacturing industries in Australia.13 Coinciding with the end of the Tobacco Stabilisation Plan (see Chapter 10, Section 10.8.2), the harmonisation of customs and excise duty was in line with government policy to reduce a range of direct and indirect subsidies in an attempt to improve international competitiveness of Australian exports. Table 13.2.2 compares rates of excise and customs duty (per kilo of tobacco weight) from 1987 to 1999.

As can be seen in Table 13.2.2, excise duty became equal to customs duty in 1995.

Table 13.2.2

Rates of federal duty* per kilo of weight, all tobacco products, as at June 1987 to 1999–excise and customs, Australia

* Current rate: the rate in the applicable year; no adjustment has been made for inflation Sources: 1987 to 1989: Australian Tobacco Marketing Advisory Committee. Annual Report 1994: year ended 31 December 1994 regarding the operation of the Tobacco Marketing Act 1965. Canberra: Australian Tobacco Marketing Advisory Committee, 1995. 1990 to 1999: Scollo M and Lal A. The very latest tobacco taxes, prices, production, expenditure, reported consumption and revenue in Australia - as at February 2007. Melbourne, Australia: VicHealth Centre for Tobacco Control, 2007. Last update: Viewed Available from: http://www.vctc.org.au/article.asp?ContentID=eco_pt_tax ; using rates specified in amended schedules to the Excise Tariff Act ( Excise Tariff Act. 1921 (Cth) Act no. 26 of 1921; Available from: http://www.comlaw.gov.au/Details/C2012C00517 ) and the Customs Tariff Act 1995 ( Customs Tariff Act 1995 (Cth) Act no. 147 of 1995; Available from: http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401908?OpenDocument )

Throughout the 1990s, health groups lobbied for increases in federal excise duty.14 ,15 In addition to the six-monthly CPI increases, the government increased the rate of federal excise applicable to cigarettes and other tobacco products on several occasions. These included a $5 per kilo increase in 199216 and increases announced in the 1993 budget17 of 3% in August 1993 and 5% in February and August 1994 and February 1995.18 The final increment rise of 5% planned for August 1995 was brought forward and increased to an immediate 10% rise in the Federal Budget handed down on 10 May 1995.19

Figure 13.2.1 shows the rate of the federal excise duty on cigarettes over the period since 1958. The figure is expressed in constant 1989–90 dollars to take into account rising prices over that time.

Figure 13.2.1

Excise duty rate per kilo of tobacco, Australia 1958 to 1999

Note: Excise duty rate expressed in constant 1989–90 dollars Sources: Australian Tobacco Marketing Advisory Committee. Annual Report 1994: year ended 31 December 1994 regarding the operation of the Tobacco Marketing Act 1965. Canberra: Australian Tobacco Marketing Advisory Committee, 1995. Federal Budget papers 1996 to 1999: Willis R. 1995-96 Commonwealth Budget. Canberra: The Parliament of the Commonwealth of Australia, House of Representatives, 1995; Costello P. Budget 1998-99. Budget paper no. 2. Health and Family Services Budget measures. Canberra: Australian Government, 1998; Costello P and Fahey J. Budget 1998-99. Final budget outcome 1998-99. Table 8, Revenue replacement payments to the States. Canberra: Australian Government, 1999. Available from: http://www.finance.gov.au/publications/final-budget-outcomes/docs/Fbo9899.pdf .

It is evident from Figure 13.2.1 that, once its value was restored by the increase and introduction of indexation in the 1983 budget, federal duty on cigarettes remained fairly steady in real terms over the late 1980s and early 1990s, increasing significantly only in the late 1990s. The level of federal duty on cigarettes in 1998 was about 50% higher in real terms than it was at its lowest point in the early 1960s.

In 1999, after extensive lobbying by health groups, 14 the government moved from levying excise and customs duty on cigarettes on the basis of weight to a system based on the number of cigarettes (see Section 13.3.1.2 for full details). Excise and customs rates on cigarettes and other tobacco products applicable since 1999 are set out in Table 13.2.3.

Table 13.2.3

Excise and customs duty applicable to cigarettes and other tobacco products since November 1999, Australia

* Current dollars: the price in the applicable year; no adjustment has been made for inflation. ^ Beginning September 2017, smoking tobacco excise rates will be adjusted each year to 2020 as part of a strategy to bring the duty of RYO cigarettes in line with that on factory-made cigarettes (see below). Sources: Rates published by the Australian Taxation Office (see https://www.ato.gov.au/Business/Excise-and-excise-equivalent-goods/Tobacco-excise/#Exciseratesfortobacco ) and Australian Department of Immigration and Border Protection. Rates for 1998–2006 also published in Federal Budget papers, for example Costello 1998–2006 (e.g. Costello P. Budget 1998-99. Budget paper no. 2. Health and Family Services Budget measures. Canberra: Australian Government, 1998) and Swan 2008–12, available at: https://archive.budget.gov.au/

Between 1999 and 2010 there were no increases in tobacco excise and customs duty on tobacco products apart from adjustments for CPI. Excise and customs duty was increased by 25% on 30 April 2010, and 12.5% annually from 2013 to 2017 (Figure 13.2.2). Four annual 12.5% excise and customs duty increases were scheduled from 2013–17,20,21 followed by a further four 12.5% annual increases to the year 2020.22,23

Figure 13.2.2

Value of excise and customs duty on tobacco (per cigarette stick weighing less than 0.8 grams): 2000 to 2020, Australia

Note: Rate expressed in 2012 dollars. Rates at August of each year to 2013, then rates at September for 2014 onwards.

Excise and customs duty for smoking tobacco (and cigars and cigarettes weighing greater than 0.8 grams of tobacco per stick) is set at a per kilogram rate that is equivalent to factory-made cigarette sticks assuming 0.8 grams of tobacco is used per cigarette. However, smokers generally use less tobacco per cigarette than this, so that in practical terms RYO tobacco attracts less tax per stick than FM cigarettes. In 2017, the Australian Government determined that the customs duty and excise on RYO tobacco (and cigars and cigarettes weighing greater than 0.8 grams of tobacco per stick) would be harmonised with FM cigarettes over a period of four years beginning September 2017. The changes were announced in the May 2017 Federal Budget.24 The customs duty and excise rate of smoking tobacco would be increased so that it assumes that 0.775 grams is used in each stick in 2017, reducing to 0.75 grams in 2018, then 0.725 grams in 2019, and reaching 0.7 grams in 2020.25,26

By reducing the quantity of smoking tobacco assumed per cigarette, this measure is expected to increase the duty on and consequently the price of roll-your-own tobacco relative to factory-made cigarettes,27,28 curbing the growing disparity in prices of these types tobacco products—see also Section 13.3.1.2.

By reducing the quantity of smoking tobacco assumed per cigarette, this measure is intended to increase the duty on and consequently the price of roll-your-own tobacco relative to factory-made cigarettes,27,28 curbing the growing disparity in prices of these types tobacco products—see also Section 13.3.1.2. At September 2020, the excise on a 0.7 gram roll-your-own cigarette was equivalent to a typical factory-made cigarette. However, given RYO smokers tend to roll cigarettes using much less tobacco than this—0.5 grams on average29—a typical RYO smoker pays around 40% less excise per cigarette than a FMC smoker in 2020.

13.2.2 State tobacco licence fees

In November 1974 Victoria became the first Australian jurisdiction to introduce a licence fee (known as a business franchise fee) on the sale of tobacco products.30 The business franchise fee on tobacco had two components. The first was a set amount charged each year. The second was an amount based on the value of tobacco sold in the immediately preceding month. The monthly (variable) rate was set at 2.5% in 1974 increasing to 10% in 1975. Between 1975 and 1989, all state and territory governments introduced similar fees.31-37

The fixed licence fee and the percentage levy varied from state to state. Generally the fees were forwarded to state or territory government revenue collection offices by tobacco wholesalers; however, if retailers purchased stock from suppliers other than licensed wholesalers, they also were required to pay both the set and the variable licence fees. The percentage component was by far the more lucrative for governments, and the rate of the levy was frequently increased in all jurisdictions, sometimes more than once within the same budget period. Table 13.2.4 shows the rates applicable in each year in each state and territory.

Table 13.2.4

Rates* for business franchise fees on tobacco 1974–97 in each Australian state and territory

Sources: Australian Tobacco Board. Annual Report 1987: year ended December 1987 regarding the operation of the Tobacco Marketing Act 1965. Canberra: Canberra Times Print, 1988.

Australian Tobacco Marketing Advisory Committee. Annual Report 1991: year ended 31 December 1991 regarding the operation of the Tobacco Marketing Act 1965. Canberra: Canberra Times Fine Print, 1992.

Australian Tobacco Marketing Advisory Committee. Annual Report 1994: year ended 31 December 1994 regarding the operation of the Tobacco Marketing Act 1965. Canberra: Australian Tobacco Marketing Advisory Committee, 1995.

NSW Retail Tobacco Traders' Association. Cigarette price lists. June and September editions, 1995, 1996, 1997.

To cover the cost of these fees, wholesalers built in a component to the wholesale prices that charged retailers for products.

The dollar value of the state fee component on a typical packet of cigarettes was quite small in early years–just a few cents in 1974. However, as the rate increased, so did the dollar value of the fee. Figure 13.2.3 shows the dollar value (in constant $-1989–90) of the fee applicable on a typical packet of cigarettes, Winfield 25s, in New South Wales between 1975 and 1999.

Figure 13.2.3

Dollar value* of the tobacco business franchise fee applicable on a typical packet of Winfield 25s in New South Wales between 1976 and 1998

* Dollar rate expressed in 1980–90 dollars. Sources: Scollo unpublished data, based on Australian Retail Tobacconist price lists ( NSW Retail Tobacco Traders' Association. Price lists--cigarettes. The Australian Retail Tobacconist, 1976–1998; 29 to 58 (February editions)). Data adjusted by the Consumer Price Index: Australian Bureau of Statistics. 6401.0 Consumer Price Index, Australia Table 11. CPI: group, sub-group and expenditure class, index numbers by capital city. Canberra: ABS, 2011. Viewed: 30 December 2011. Available from: http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6401.0Sep%202011?OpenDocument

Since they were first introduced, the state business franchise fees were somewhat controversial and several legal challenges were mounted asserting that the schemes were in breach of s. 90 of the Australian Constitution, which prohibits Australian states and territories from raising revenue from the sale of products. The wording of the various pieces of state business franchise legislation attempted to ensure that the fees were not regarded as excises, based as they were on the value of sales in a previous period rather than on the quantity or volume of products currently being transacted. When the state business franchise fees were first introduced, the fees were quite low, arguably providing revenue sufficient merely to cover administration costs. By 1996 however, fees in New South Wales and other Australian states had become so high that they were clearly an important source of government revenue, and not merely a levy to cover the cost of regulation.

When the Ngo Ngo Ha & Anor v. State of New South Wales & Ors case was lodged in the High Court in 1996, many lawyers and government officials correctly predicted that the Court would find the fees to be unconstitutional (memorandum from Francey N, Wentworth Chambers Sydney, 8 July 1997 to Michelle Scollo, Director Victorian Smoking and Health Program). The High Court ruling on 5 August 199738 effectively invalidated not just business franchise fees based on sales of tobacco in New South Wales, but also business franchise fees based on sales of tobacco, alcohol and petroleum in all states and territories.

Several state Treasury officials, aware of the possibility of the Ngo Ngo Ha v. NSW case succeeding, had commenced negotiations with their federal counterparts late in 1996 and had extracted an undertaking that the federal government would increase federal excise duties on tobacco, alcohol and petroleum, and would pass back a share of the increased revenue to the states should the case succeed. After the High Court handed down its decision, arrangements with the states and territories to honour that commitment were rapidly set in motion–see Technical Appendix 13.2.1 for further details.

The Commonwealth agreed to collect a surcharge on each of the three products, and then to pass on the revenue to the states and territories.

In 1997 the federal (Coalition) government announced a comprehensive review of the tax system. It called for a major overhaul of federal and state taxes, the abolition of state business franchise replacement fees and a raft of state sales taxes and the introduction of a goods and services tax. It was agreed that the revenue from the new goods and services tax (GST) would go to the states and territories to compensate for the revenue no longer to be received from state sales taxes and business franchise fees.

On 13 August 1998, two weeks prior to calling an election, the government released its long awaited tax reform package, titled Tax Reform: Not a New Tax; a New Tax System.39 The proposal included plans to abolish tobacco replacement payments and to introduce a per stick system of raising customs and excise duty, with the level of the duty to be set so that the excise payable on any brand of cigarettes would be no lower than the existing level of duty. The fee payable on large packets of cigarettes would increase substantially, making them much closer in price (per stick) to cigarettes sold in smaller pack sizes.

After the government was re-elected, following a short delay reforms were implemented in November 1999.40

13.2.3 Goods and Services Tax

Unlike in many other countries which introduced goods and services taxes, in Australia (as requested by health groups) the excise duty on tobacco was not adjusted downward when the 10% goods and services tax (GST) was introduced.39 The GST came into force in Australia on tobacco and all other retail services and products excluding grocery items on 1 July 2000. 41-43

As with all other taxable products and services in Australia, the GST is calculated by adding 10% to the pre-GST price. In this way, the GST makes up one-eleventh or 9.1% of the final price of each packet of cigarettes, cigars or smoking tobacco.44

13.2.4 Excise levels in Australia compared with other developed countries

Figure 13.2.5 shows tax levels in Australia compared with selected other developed countries for the year 2016. At that time, excise duties in Australia made up more than half of the final price of the leading packet of cigarettes. It should be noted that excise/customs duty makes up a higher proportion of the final prices of many low-cost brands of Australian cigarettes that are cheaper than the leading brand.

Figure 13.2.5

Excise tax as a proportion cigarette prices in Australia and comparable English-speaking and European countries, 2016

Note 1: These calculations only include excise duty, not goods and services or other ad valorem taxes Note 2: It is difficult to analyse tax levels in the US because of differing levels of excise and sales tax in the 50 states and the large component of cost that is collected to pay terms of legal settlements with manufacturers.

Source: World Health Organization. Table 9.5.0 Supplementary information on taxation, globally, in WHO report on the global tobacco epidemic, 2017. Monitoring tobacco use and prevention policies. Geneva: WHO, 2017. Available from: http://www.who.int/tobacco/global_report/2017/en/

Figure 13.2.6 compares the rates of excise duty in Australia and New Zealand from 2000 to 2019 as an index based on dollar values in the original currency. In both countries, excise increased very little during the 2000s, during a period of indexation-only adjustments in both countries. Australia introduced a 25% excise increase in April 2010, returning to indexation only for 2011-2012, then 12.5% annual increases from 2013 onward. In contrast, New Zealand introduced 10% annual excise increases from 2011 onward. The effect of these two taxation approaches meant that in 2012 excise in both countries was 80% higher than it was in 2000. From that point the compounding effect of the annual 12.5% versus 10% increases mean that tobacco excise was about 270% times higher in Australia in 2019 than in 2012, while it doubled in New Zealand over the same period.

Figure 13.2.6

Relative excise and customs duty applicable to cigarettes in Australia and New Zealand, 2000–2019

Note: Data is an index for each country, with 2000 as the base. All figures applicable in December of each year. Sources: Australia: As per Table 13.2.3. New Zealand: O’Dea D, Thomson G. Report on Tobacco Taxation in New Zealand. Volume I Main Report. New Zealand: The Smokefree Coalition and ASH New Zealand, 2007. Available from: https://www.otago.ac.nz/wellington/otago022573.doc; Stats NZ. Excise duty increase for cigarettes and tobacco. Wellington: New Zealand Government, 2018. Last viewed 20 June 2019. Available from: https://www.stats.govt.nz/methods/excise-duty-increase-for-cigarettes-and-tobacco; New Zealand Customs Service: https://www.customs.govt.nz/.

References

1. Harvard University Institute for the Study of Smoking Behavior and Policy. The cigarette excise tax. in Smoking Behavior and Policy Conference Series. Cambridge, Massachusetts. Cambridge Massachusetts: John F Kennedy School of Government, Harvard University; 1985.

2. US Department of Health and Human Services. Reducing the health consequences of smoking: 25 years of progress. A report of the surgeon general. Rockville, Maryland: US Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Chronic Disease Prevention and Health Promotion, Office of Smoking and Health, 1989. Available from: http://profiles.nlm.nih.gov/NN/B/B/X/S/.

3. Chaloupka FJ, IV, Peck R, Tauras JA, Xu X, and Yurekli A. Cigarette excise taxation: The impact of tax structure on prices, revenues, and cigarette smoking. NBER Working paper No. 16287 Cambridge, Massachusetts: National Bureau of Economic Research, 2010. Available from: http://www.nber.org/papers/w16287.

4. World Health Organization. WHO technical manual on tax administration. Geneva, Switzerland: WHO, 2010. Available from: http://www.who.int/tobacco/publications/tax_administration/en/index.html.

5. Excise act. 1901 (Cth); Available from: http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401597?OpenDocument.

6. Customs act. 1901 (Cth); Available from: http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401390.

7. Department of Customs and Excise. A brief history of Australian customs activities prior to federation. Canberra: Department of Customs and Excise, 1965.

8. James D. Coffers or coffins? Government policy on death from smoking. Information and Research Services Current Issues Brief, 1998; 16(1997–8). Available from: http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/CIB9798/98cib16

9. Department of Customs and Excise. Excise tariff history (since 1901). Canberra: Department of Customs and Excise, 1965.

10. Excise regulations, 1925 (Cth). Available from: http://www.comlaw.gov.au/Details/F2012C00423.

11. Excise tariff act. 1921 (Cth) Act no. 26 of 1921; Available from: http://www.comlaw.gov.au/Details/C2012C00517.

12. Excise tariff amendment act. 1983 (Cth) Act no. 27 of 1983; Available from: http://www.comlaw.gov.au/Details/C2004A05276.

13. Industry Commission. The Tobacco growing and manufacturing industries. Industry commission inquiry report no. 39. Canberra: Australian Government Publishing Service, 1994. Available from: https://www.pc.gov.au/inquiries/completed/tobacco/39tobacc.pdf.

14. Scollo M. Closing the loophole--the need for action in 1997. Melbourne, Australia: Anti-Cancer Council of Victoria, 1996.

15. Scollo M. Federal excise duty on tobacco--proposals for reform. Melbourne, Australia: Anti-Cancer Council of Victoria, 1998.

16. Dawkins J. Budget speech 1992-93. 18 August Canberra: House of Representatives, 1992.

17. Dawkins J. Budget speech 1993-94. 17 August Canberra: House of Representatives, 1993.

18. Willis R. Budget speech 1994-95. 10 May: House of Representatives, 1994.

19. Willis R. 1995-96 commonwealth budget. Canberra: The Parliament of the Commonwealth of Australia, House of Representatives, 1995.

20. Excise tariff amendment (Tobacco) act 2014. 2014; Available from: http://www.comlaw.gov.au/Details/C2014A00009.

21. Customs tariff amendment (Tobacco) act 2014. 2014; Available from: http://www.comlaw.gov.au/Details/C2014A00008.

22. Excise tariff amendment (Tobacco) act 2016. 2016; Available from: https://www.legislation.gov.au/Details/C2016A00060.

23. Customs tariff amendment (Tobacco) act 2016. 2016; Available from: https://www.legislation.gov.au/Details/C2016A00059.

24. Morrison S and Cormann M. Budget 2017-18. Budget paper no. 2.Part 1. Revenue measures. Canberra: Treasury, 2017. Available from: http://www.budget.gov.au/2017-18/content/bp1/html/.

25. Customs tariff amendment (Tobacco duty harmonisation) bill 2017, 2017. Available from: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5892%22;src1=sm1.

26. Excise tariff amendment (Tobacco duty harmonisation) bill 2017, 2017. Available from: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5893.

27. Customs tariff amendment (Tobacco duty harmonisation) bill 2017, explanatory memorandum, 2017. Available from: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5892%22;src1=sm1.

28. Excise tariff amendment (Tobacco duty harmonisation) bill 2017, explanatory memorandum, 2017. Available from: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5893.

29. Branston JR, McNeill A, Gilmore AB, Hiscock R, and Partos TR. Keeping smoking affordable in higher tax environments via smoking thinner roll-your-own cigarettes: Findings from the International Tobacco Control Four Country Survey 2006-15. Drug Alcohol Depend, 2018; 193:110-116. Available from: https://www.ncbi.nlm.nih.gov/pubmed/30352334

30. Business Franchise (Tobacco) Act 1974 (Vic).

31. Business Franchise (Tobacco) Act (replaced by Tobacco Products (Licensing) Act 1986, and finally by the Tobacco Products Regulations Act 1997. 1974 (SA).

32. Business Franchise (Tobacco) Act. 1975 (NSW).

33. Business Franchise (Tobacco) Act. 1975 (WA).

34. Business Franchise (Tobacco) Act. 1980 (Tas).

35. Business Franchise (Tobacco) Act. 1981 (NT).

36. Business Franchise (Tobacco) Act. 1984 (ACT).

37. Business Franchise (Tobacco) Act. 1988 (Qld).

38. Brennan C, McHugh, Gummow, and Kirby J. Ha & Anor v State of New South Wales & Ors 71 ALJR 1080 at 1082 per, 1997. Available from: http://www.austlii.edu.au/au/cases/cth/HCA/1997/34.html.

39. Costello P. Not a New Tax: a New Tax System. Canberra: Australian Government, 1998. Available from: https://catalogue.nla.gov.au/Record/1916627

40. Costello P. Explanatory Memorandum. Excise Laws Amendment (Fuel Tax Reform and Other Measures) Bill 2006 and Excise Tariff Amendment (Fuel Tax Reform and Other Measures) Bill 2006. The Parliament of the Commonwealth of Australia House of Representatives, 2006. Available from: http://www.comlaw.gov.au/ComLaw/Legislation/Bills1.nsf/framelodgmentattachments/5F9F9AF8EA680FD5CA25716F0018F551.

41. A New Tax System (Goods and Services Tax Imposition—Customs) Act 1999 (Cth) [cited 73; Available from: http://www.austlii.edu.au/au/legis/cth/consol_act/antsastia1999634/.

42. A New Tax System (Goods and Services Tax Imposition—Excise) Act. 1999 (Cth) [cited C2005C00390 Available from: http://www.comlaw.gov.au/comlaw/Legislation/ActCompilation1.nsf/0/A5166EC037FEE339CA2570260027F867/$file/ANTSGoodsServTaxImpExcisesAct1999WD02.pdf.

43. A New Tax System (Goods and Services Tax Imposition—General) Act. 1999 (Cth) [cited C2005C00391; Available from: http://corrigan.austlii.edu.au/au/legis/cth/consol_act/antsastia1999586/.

44. Australian Taxation Office. The New Tax System: Information for Business. Canberra: Treasury, 2001.

45. Excise Tariff Amendment Act. 1997 (Cth) No. 5 of 1997; Available from: http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/asmade/bynumber/A9B1843D9F303B0BCA256F720019352C?OpenDocument.

Technical appendix 13.2.1 Abolition of state franchise fees on tobacco

Each state and territory had, over the years, developed different methods of collecting licence fees, with different levels of fees, different due dates and a variety of other arrangements to suit local needs and politics.

The Commonwealth was anxious to honour its commitment to the States to make up the revenue lost from the abolition of state franchise fees after the High Court ruled in August 1997 that these fees were unconstitutional. However, one of the key platforms of the (opposition Coalition) government in power prior to the previous election had been a promise not to increase taxes. A key political objective of the federal and some of the state governments was thus to protect consumers from possible price rises in tobacco, alcohol and particularly petroleum products.

Frantic negotiations ensued between state and federal representatives in the wake of the 1997 High Court decision. The first 'deal' that emerged involved the Commonwealth collecting revenue set to equal the highest rates applicable to each product in any jurisdiction. This meant that the Commonwealth would collect and distribute $6.5 billion rather than the $5 billion formerly collected by the states and territories. The states and territories, in turn, would provide rebates to manufacturers/wholesalers in lower taxing states, to ensure that no state received windfall revenue and no consumers faced huge price hikes. Refer to the States Grants (General Purposes) Amendment Act No. 1, 131 of 1997.

Within days, however, complications emerged in respect of tobacco. While Treasury officials had anticipated the High Court ruling and had prepared to compensate the States in broad terms, it seems that no-one had carefully enough thought through the precise details of exactly how revenue would be raised by the Commonwealth and exactly how it would be collected. Treasury officials and (relatively new) government advisers involved in negotiations with the States may not have had a very firm understanding of the price structure of cigarettes or the intricacies of collection.

Following the ruling, the Commonwealth announced that the federal excise duty on tobacco would be increased by $167 per kilogram (from $84.27 per kilogram). As had been predicted in the cigarette taxes and prices model developed by the Anti-Cancer Council of Victoria, this led to an immediate price rise in budget cigarettes, in particular in the Wills Horizon brand–heavier than its competitors Holiday (Rothmans) and Longbeach (Philip Morris). As a consequence, WD and HO Wills lodged the strongest possible protest with the Treasurer's office, suspended sales and requested that its shares be suspended on the Australian Stock Exchange (Adams, 1997). Wills Chairman, former NSW premier Nick Greiner, appealed to the Treasurer for the increased excise to be replaced by an ad valorem tax. Rothmans and Philip Morris were also unhappy about the increased excise duty, which would have increased prices by as much as $1.75 per packet, and raised an additional $500 million in revenue. They objected, however, to the Wills proposal, which would have been much more advantageous for the Wills brands.

By the end of the week, confusion reigned and further desperate rounds of negotiations were taking place between federal Treasury officials, officials in state governments and wholesalers and retailer associations for alcohol, tobacco and petroleum products throughout the country.

Confronted by pressure from alcohol wholesalers and retailers, the Victorian, Queensland and Australian Capital Territory governments agreed to fund the prepaid alcohol fees, thereby protecting consumers from a large increase in low alcohol beer and wine prices (Pinkney 1997). South Australia and New South Wales initially resisted pressure to provide such refunds, (correctly as it turns out) asserting that they would miss out on revenue once the Commonwealth took over responsibility for revenue collection, and collections were made on a cash rather than an accrual basis. The Western Australian government was then very concerned about the impact on its total revenue: it had been counting on the over-payments from alcohol and tobacco to subsidise low alcohol beer, cellar door wine sales and petrol prices for off-road users, previously exempted from the state's fuel levy. Western Australia, supported by South Australia and Tasmania, boycotted talks on 25 August with tobacco companies initiated by the Commonwealth (Washington 1997).

By the beginning of September, confusion had degenerated into chaos, and the federal Treasurer had little choice but to threaten withdrawal of the safety net unless the states agreed to his plan. The deal that emerged was a series of trade-offs between all the parties concerned, with the federal government more or less achieving its aims of: maintaining total revenue for the states, even if revenue from individual products might be reduced; minimising price rises particularly of low alcohol products and petrol; and in the case of tobacco, treating each of the three manufacturers in an equitable manner.

In the end, the legislation instituted to cover the new arrangements essentially replicated (exclusively at the federal level rather than at federal and state level) the tax and price structure in place on cigarettes prior to the High Court ruling.

Two pieces of legislation were passed to put these cumbersome arrangements into law.

First was the States Grants (General Purposes) Amendment Act (No. 2) 1997, which amended the States Grants (General Purposes) Act 1994. This determined a revised share of revenue to go to each state, roughly in line with previous expected revenue, but taking into account concerns raised by a number of the smaller states.

The second piece of legislation related to the manner in which the surcharge on tobacco was to be raised. On 17 September 1997, the government gazetted a new regime for the taxing of cigarettes, later to be instituted in the Excise Tariff Amendment Act (No. 5) 1997. 61 After lobbying by manufacturers concerned about the differential effect of the proposed new arrangements on each company's products, the legislation in the end was formulated in a way that replicated the tax structure that was in place prior to the High Court decision. That is, part of the formula for determining excise (and customs) duty was based on weight, and part on the wholesale value of the product sold. The weight-based excise on tobacco increased from $84.27 to $86.92 per kilogram. The value-based component increased from 100% of the wholesale value of tobacco products to about 101.3%. The new schedule stated that the state surcharge would be based on 50.32% of the listed wholesale price, which is mathematically equivalent to 101.3% of the pre-wholesale price, just 1.3% higher than the level that had been applicable under the states' business franchise legislation.