Tobacco Act 1987 (review)

This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.

The Tobacco Act 1987 (the Act) establishes a licensing scheme for tobacco retailers and wholesalers. The licensing scheme takes effect from 1 July 2025. The aim of the licensing scheme is to safeguard the suitability of licensed retailers and wholesalers of tobacco products, promote and enforce compliance with controls on the lawful sale and promotion of tobacco products and uphold the integrity of the licensing scheme by deterring unlawful conduct.

Cases we can hear

You may be able to apply to VCAT for a review if you are a person whose interests are affected by any of the decisions by the Regulator and you have been unsuccessful in an internal review:

• refusing a licence application, renewal application, variation application, relocation application or transfer application
• varying a licence
• suspending or cancelling a licence
• disqualifying a person from holding a licence
• refusing an application to suspend or cancel a licence, where that application was made by a licensee.

VCAT can review some decisions of the Regulator without you needing to seek an internal review first. These include decisions of the Regulator:

• to issue an improvement notice or vary an improvement notice
• that the Regulator has specified is based on advice from the Chief Commissioner of Police (Chief Commissioner).

When VCAT receives an application to review a decision specified by the Regulator to be based on advice from the Chief Commissioner, VCAT must ask the Regulator whether the grounds for a decision were based on any “protected information” or whether any protected information was given to the Regulator.

Protected information means information used by police. This includes information that may identify a person who provided information to police or who has been involved in a police investigation. It could also include information which, if it was revealed, may compromise a police investigation, pose a risk to a police officer or is not otherwise in the public interest to be disclosed.

If protected information is involved, section 34ZP requires the Chief Commissioner to be joined as a party to the proceeding.

Sections 34ZN - 34ZR of the Act set out the special procedures where protected information is involved in the Regulator’s decision. You should read those sections carefully if such circumstances apply. VCAT may appoint a barrister (special counsel) to represent your interests in your review proceedings to the extent they relate to any protected information. This means that the special counsel will attend a hearing on your behalf but may not be able to disclose the protected information to you.

At any time before a final decision has been made by VCAT in a review proceeding that involved protected information, the Chief Commissioner may request the Regulator to reconsider their decision without relying on the protected information. If such a request is made, the Chief Commissioner must advise VCAT and VCAT must remit the matter for reconsideration by the Regulator.

Legislation that gives VCAT the power to hear these applications

Sections 34ZL – 34ZR and section 35ZF of the Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Act 2024.

Documents you need to apply

If you have a notice of decision document or a statement of reasons, use it to help you complete the VCAT application form and attach a copy of the document to your application.

Time limits

Where you are seeking review by VCAT for an unsuccessful internal review application, you must make your application within 28 days from when:

• the internal review decision was made
• if you have requested a statement of reasons under the Victorian Civil and Administrative Tribunal Act, the statement of reasons is given to you, or you are informed that a statement of reasons will not be given.

Where you are seeking review by VCAT for a decision that the Regulator has specified is based on advice from the Chief Commissioner, you must make your application within 28 days from when the Regulator informed you that the decision was based on the advice of the Chief Commissioner.

Where you are seeking review by VCAT for a decision relating to an improvement notice, you must make your application within 28 days from when:

• the decision was made
• if you have requested a statement of reasons under the Victorian Civil and Administrative Tribunal Act, the statement of reasons is given to you or you are informed that a statement of reasons will not be given.

If you apply outside of the time limit, VCAT may extend the time for making an application. You must ask for an extension of time by indicating this on the ‘extension of time’ question of the application form and briefly explaining why your application was late.

VCAT will ask the decision maker if they agree to any extension. If the decision maker does not agree, VCAT may hold a preliminary hearing before deciding whether to grant an extension.

What can VCAT order

Unless the relevant Act of Parliament gives us different powers, VCAT can:

• affirm the original decision, in which case the original decision will stand
• vary the decision
• set aside the decision and substitute our own decision
• set aside the decision and send back the matter for reconsideration by the decision maker giving directions or recommendations
• invite the decision maker to reconsider their decision at any time during the case.

Putting the original decision on hold

In most cases, applying for a review does not put the original decision on hold and that decision stands until VCAT makes its decision.

If you want the original decision put on hold, you must ask for this by indicating you want a ‘stay’ on the application form and briefly explaining why you are seeking a stay.

It may not be possible to put the decision on hold if there would be no practical effect in doing so.

VCAT will ask the decision maker if they agree to any stay. If the decision maker does not agree, VCAT may hold a preliminary hearing before deciding whether to grant a stay.

Apply

Contact us to get support. We can explain the application process and what the form is asking you for.

We cannot give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want. Seek legal help if you are unsure about your options or need advice about your claim.

Do I need a lawyer or professional representative?

You do not need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission.

Be aware that the regulatory body in most cases uses legal representation.

Find legal services that may be able to assist you.

If a barrister (special counsel) is appointed by VCAT to represent your interests, they may only represent you to the extent your interests relate to the protected information on which the decision is based. There are limitations on what instructions the barrister (special counsel) can take from you and what information they can communicate to you. The barrister (special counsel) may also be required to sign a confidentiality undertaking to VCAT.

Access and privacy 

VCAT hearings and files are usually public. If VCAT has been advised that a decision was based on protected information or VCAT decides that any of the evidence is protected information, the hearing will be conducted in private. Only certain persons are allowed to be present at the hearing of the application.

VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.