Issue
For the holder of a storage licence to be a 'licensed person for the fuel' as specified in sections 5 and 7 of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (EGCFSA), does the 'cleaner fuel' have to be stored at a place specified in the licence?
Decision
Yes. For the holder of a storage licence to be a 'licensed person for the fuel' as specified in sections 5 and 7 of the EGCFSA the person must store the 'cleaner fuel' at a place specified in the licence.
Facts
A person holds a storage licence under the Excise Act 1901 that entitles them to hold a particular type of fuel at specified premises.
The person does not hold any other type of excise licence or permission.
The particular type of fuel held by the person is a 'cleaner fuel' for the purposes of the EGCSFA.
The person stores fuel at separate premises from those specified in their storage licence.
Reasons for Decision
The cleaner fuels grants scheme provides for the payment of grants to certain entities that have particular dealings with cleaner fuels.
A cleaner fuel is a fuel that is defined within subsection 4(1) of the EGCFSA.
Section 5 of the EGCFSA contains the legislative requirements for provisional entitlement to a cleaner fuel grant and section 7 of the EGCFSA contains the disqualifying circumstances.
These provisions refer to the term 'licensed person for the fuel'. Specifically, this term occurs in subparagraph 5(1)(b)(iv), subparagraph 5(1)(g)(i), paragraph 5(4)(b) and paragraph 7(1)(a) of the EGCFSA.
The EGCFSA only defines the term 'licensed person' This definition appears in subsection 4(1) of the EGCFSA; licensed person , for a fuel, means: (a) a person who is: (i) a licensed manufacturer (as defined in the Excise Act 1901 ); or (ii) a holder of a storage licence (as defined in the Excise Act 1901 ); or (iii) a person specified in a permission given under section 61C of the Excise Act 1901 ; or (iv) a person to whom a permission has been granted under section 69 of the Customs Act 1901 .
In the drafting of the entitlement/disqualifying provisions, by using the phrase 'licensed person for the fuel', rather than merely referring to 'licensed person', the drafter has consistently linked the concept of a 'licensed person' with 'the fuel'. The phrase 'the fuel' clearly refers to a particular quantity of fuel which attracts a provisional entitlement to a grant under section 5 of the EGCFSA or disqualification of that provisional entitlement under section 7 of the EGCFSA.
Consequently, the term 'licensed person for the fuel' must be considered in the context of the particular fuel which is the subject of a provisional entitlement to a cleaner fuels grant. In addition, in determining whether the holder of a storage licence is a licensed person for the fuel, one must consider whether the person intends to store the particular fuel that is subject to a provisional entitlement at the premises specified in their storage licence. If the holder of a storage licence obtains a quantity of fuel subject to a provisional entitlement and does not store the fuel at the premises specified in their storage licence, they are not a licensed person for the fuel.
It follows that for the holder of a storage licence to be a 'licensed person for the fuel' as specified in sections 5 and 7 of the EGCFSA, the person must store the cleaner fuel at a place specified in the licence.