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For the purposes of the Diesel Fuel Rebate Scheme, are the living quarters provided for the crew on a vessel, 'residential premises' as that term is defined in subsection 164(7) of the Customs Act 1901 )?

Yes. On a vessel, the living quarters of the crew can be 'residential premises' as defined in subsection 164(7) of the Customs Act if there is a sufficient continuity of association between the vessel and the members of the crew.

A vessel visits an Australian port.

Throughout the vessel's voyages the crew eats, sleeps, works and has recreation time on the vessel. When the vessel ties up at the port, the crew members spend short periods ashore. However some crew remain on board at all times.

Paragraph 78A(1)(b) of the Excise Act 1901 and paragraph 164(1)(b) of the Customs Act provide that a rebate is payable to a person who purchases diesel fuel for use by them at a residential premises to generate electricity to meet the domestic requirements of the residents of the premises: (b) at residential premises to generate electricity for use in: (i) providing food and drink for (ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or (iii) meeting other domestic requirements of residents of the premises; ...

Subsection 164(7) of the Customs Act 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; ...

The definition of '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: Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520; (1989) 85 ALR 279; (1989) 10 AAR 119). 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 situate, 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 crew members eat, sleep, work and have their recreation time on the vessel, except for short periods ashore and during the vessel's time in port, certain crew remain on board at all times. Therefore, a requisite continuity of association between the vessel and its crew exists and as such, the vessel is considered to be 'residential premises'.