Issue
Is a shipping agent entitled to a diesel fuel rebate in their own right under subsection 78A(1) of the Excise Act 1901 (Excise Act) or subsection 164(1) of the Customs Act 1901 (Customs Act) for diesel fuel they purchase as an agent of an overseas entity?
Decision
No. A shipping agent is not entitled to a diesel fuel rebate in their own right under subsection 78A(1) of the Excise Act or subsection 164(1) of the Customs Act for diesel fuel they purchase as an agent of an overseas entity.
Facts
A shipping agent purchases diesel fuel on behalf of a foreign company.
The diesel fuel is for use by that company in carrying on an activity that is eligible for a diesel fuel rebate under either the Excise Act or Customs Act.
Reasons for Decision
Under subsection 78A(1) of the Excise Act and subsection 164(1) of the Customs Act: A rebate is ... payable to a person who purchases diesel fuel for use by the person ....
Thus, a shipping agent is only entitled to a diesel fuel rebate if it can be said that they have purchased diesel fuel for use by them, in certain defined activities.
Although the shipping agent pays for the fuel, it does so on behalf of another party 'the principal'. The legal concept of agency refers to a relationship that gives a party (the 'agent') capacity to create binding relations between the party giving that capacity or authority (the principal) and third parties (see International Harvester Company of Australia Pty Ltd v. Carrigan's Hazeldene Pastoral Lease Co (1985) 100 CLR 644 at 652).
Under the doctrine of agency, the actions of an agent bind the principal. The purchase of diesel fuel by an Australian shipping agent on behalf of an overseas entity for use by the overseas entity in the conduct of their business in Australia does not constitute a 'purchase' of diesel fuel by the agent, as the agent makes the purchase on behalf of the principal and not on its own behalf.
Furthermore, the shipping agent cannot be said to be purchasing the diesel fuel for its own use in any of the defined activities that are eligible for a diesel fuel rebate. Rather, the diesel fuel is purchased by the overseas entity for use by the overseas entity.
Therefore, the agent is not able to claim a diesel fuel rebate in its own right for diesel fuel it purchases in its capacity as an agent for an overseas entity.