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Is the accommodation provided for the employees of a client engaged in fishing operations 'residential premises' for the purposes of section 4 of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

Yes. The accommodation provided for the employees of a client engaged in fishing operations is 'residential premises' for the purposes of section 4 of the EGCSA.

The client is engaged in fishing operations and provides accommodation for employees. Due to the remote location, employees are required to work on a two weeks on and one week off roster basis. Diesel generators are used to provide power to the accommodation.

Paragraph 53(4)(b) of the EGCSA provides that an off-road energy grant is payable to a person who purchases diesel fuel for use at residential premises to generate electricity to meet the domestic requirements of the residents of the premises. Section 4 of the EGCSA defines 'residential premises' as: (a) premises used as a house; or (b) other premises at which at least one person resides but does not include: (c) premises used in the business of a hotel, motel or boarding house or a similar business...

In Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520, the Federal Court considered whether 'residential premises' could include the living quarters of vessels under the Diesel Fuel Rebate Scheme, the precursor to the Energy Grants (Credits) Scheme administered under the Excise Act 1901 and the Customs Act 1901 .

The court decided that 'residential premises' can include the living quarters of vessels provided the requisite continuity of association exists between the vessel and crew to constitute the vessel as the crew's place of residence. In that case the Full Federal Court cited with approval the following passage from the judgment of Williams J in Koitaki Para Rubber Estates Pty Limited v. Federal Commissioner of Taxation (1941) 64 CLR 241; (1941) 6 ATD 82; (1941) 2 AITR 136:

The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situated, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.

In this case, the employees are rostered to work for two weeks and then they have a week off. For the two weeks the employees are rostered to work, they eat, sleep, work and have their recreation time at the accommodation provided.

The two weeks on, one week off pattern continues for a sustained period of time. Therefore, a requisite continuity of association between the accommodation and the employees exists and as such, the accommodation is considered to be 'residential premises' for the purposes of section 4 of the EGCSA.