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AUSTUDY REGULATIONS (AMENDMENT) 1994 NO. 409
EXPLANATORY STATEMENTStatutory Rules 1994 No. 409
Issued by the authority of the Minister for Schools, Vocational Education and Training
Student Assistance Act 1973
AUSTUDY Regulations (Amendment)
The Student Assistance Act 19 73 (the Act) provides the legislative authority for the. AUSTUDY scheme and for a debt management regime for the AUSTUDY, ABSTUDY and Assistance for Isolated Children schemes. These schemes pay financial assistance directly to students or their parents.
Section 56 of the Act provides that the Governor-General may make regulations for the purposes of the Act.
The changes to AUSTUDY made by the amending regulations are outlined below, The references in brackets are references to the amending regulation.
1. Changes to the AUSTUDY scheme announced in the 1994 and previous Budgets
• The age of independence is reduced to 22 years. (regulation 17)
• The student income test is based on income earned in the current financial year, instead of the year of study, from 1 January 1995. This will minimise overpayments and allow effective checking of student's reported income against taxation records. (regulations 22 and 43)
• The parental and spouse income tests are modified by the addition of the value of negative gearing taxation deductions. (regulations 27 and 31 and sub-regulations 25.1, 25.2, 25.3, 30.1 and 30.2).
• Rent assistance is available to certain students who qualify for the independent rate of living allowance and to students who qualify for the away from home rate of living allowance because they are in approved foster care arrangements. This addresses the anomaly that rent assistance is available to unemployed young people who are homeless but not to students in similar circumstances. (regulation 34)
2. Changes to the AUSTUDY scheme to implement other Government announcements
• The Government has decided to abolish the Student Assistance Review Tribunal (SART) and transfer its functions to the Social Security Appeals Tribunal. This ensures consistency of review of AUSTUDY and youth training allowance decisions. AUSTUDY Regulations 103 to 107 inclusive which relate to proceedings of the SART are omitted. Schedules 4 and 5, which relate to regulations 103 and 104 are also omitted. Consistent with the change, references to "authorised person" in AUSTUDY regulations 12C and are omitted and substituted with references to "the Secretary". (regulations 5, 35 and 40 and subregulation 36.1)
• Eligible students whose parent, parents or spouse get the new Drought Relief Payment (DRP) qualify for the maximum appropriate rate of AUSTUDY free of income and assets tests. This applies for the period that the parent, parents Or spouse gets the DRP. Students from families that do not get the DRP, but nevertheless Eve in an exceptional circumstances drought affected area, are eligible for an assets test concession that exempts their farm assets in that area. (regulation 7 and sub-regulations 28.1 and 32.2)
• In order to bring AUSTUDY into line with the requirements of the Sex Discrimination Act 1984, students no longer achieve independence by marriage. Students who received the independent rate because they were married prior to this change can continue to get that rate until the end of their course or program of study. The definition of "spouse" is amended to meet the requirements of the Sex Discrimination Act 1984, resulting in a series of consequential amendments. This provides equal treatment of couples who are married and couples who are, living in de facto relationships. Independent students who live with their spouse are ineligible for fares allowance. (regulations 8, 18 and 29, sub-regulations 16.1 and 33.1)
3. Other changes to the AUSTUDY regulations
• The amendments also make a number of editorial corrections and clarifications, minor amendments and consequential amendments to the existing AUSTUDY regulations.
The regulations commence on 1 January 1995 with the following exceptions:
• regulation 6 and sub-regulations 11.2, 38.2, 38.3, and 38.5 are taken to have commenced on 1 January 1994. These amendments are beneficial in effect
• sub-regulation 41.8 are taken to have commenced on 9 June. 1994. This regulation provides consistent treatment of housing fringe benefits between the Departments of Social Security and Employment, Education and Training. The amendment is beneficial in effect
• regulation 7 and sub-regulations 28.1 and 32.2 are taken to: have commenced on 1 October 1994. These amendments are beneficial in effect
• regulations 3, 5, 15, 21, 35, 36 and 40 and sub-regulations 9.3, 9.4, 9.5, 9.6, 9.7, 16.2, 20.2, 23.2, 32.1, and 37.3 are taken to commence on the date of commencement of the Student Assistance (Youth Training Allowance) Amendment Act 1994.
Attachment A contains a more detailed explanation of the amendments.
Attachment A
DETAILS OF THE AUSTUDY REGULATIONS (AMENDMENT)
The detailed explanation of the changes to the AUSTUDY regulations is set out in amending regulation order. (For example, amending Regulation 3 will amend regulation 5 of the AUSTUDY regulations.) To aid understanding, the AUSTUDY provision being amended is briefly described. Following the description is an explanation of the amendment and the effect it will have on the regulation.
Regulation 1 Commencement
Sub-regulation 1.1 provides that regulation 6 and sub-regulations 11.2, 38.2, 38.3, and 38.5 are taken to have commenced on 1 January 1994.
Sub-regulation 1.2 provides that sub-regulation 41.8 is taken to have commenced on 9 June 1994.
Sub-regulation 1.3 provides that regulation 7 and sub-regulations 28.1 and 32.2 are taken to have commenced on 1 October 1994.
Sub-regulation 1.4 provides that regulations 3, 5, 15, 21, 35, 36 and 40 and sub-regulations 9.3, 9.4, 9.5, 9.6, 9.7, 16.2, 20.2, 23.2, 32.1, and 37.3 are taken to have commenced on the date that the Student Assistance (Youth Training Allowance) Amendment Act 1994 commences.
Sub-regulation 1.5 provides that the remainder of these regulations commence on 1 January 1995.
Regulation 2 Amendment
Sub-regulation 2.1 provides that the AUSTUDY Regulations are amended as set out in these regulations.
Regulation 3 Regulation 5 (Age)
Regulation 5 provides that a student must be a certain age to got AUSTUDY. Paragraph 5(1)(a) provides that a student must be at least 16 years old, or paragraph 5(1)(b) provides that a student must be at least school leaving age in his or her State or Territory and covered by certain other AUSTUDY regulations. Subparagraph 5(1)(b)(iii) relates to homelessness.
Sub-regulation 3.1 omits subparagraph 5(1)(b)(iii) and substitutes new subparagraph 5(1)(b)(iii). This changes "Independent student: (g) homelessness" to "Independent student: (g) unreasonable to live at home" to be consistent with the nomenclature adopted in regulation 74 (see Regulation 21).
Regulation 4 Regulation 8 (AUSTUDY is payable until when?)
Regulation 8 provides the dates on which AUSTUDY will cease in specified circumstances. Paragraph 8(1)(d) provides that AUSTUDY will stop on the day on which a student who does not commence study again after a vacation (other than the long vacation) because of circumstances beyond his or her control becomes aware of the circumstances.
Sub-regulation 4.1 omits "(other than the long vacation)" from paragraph 8(1)(d). This means that AUSTUDY may be payable until the day in a year of study that a student became aware that circumstances beyond his or her control had prevented him or her from studying after the long vacation. The student may be eligible for assistance until this day if the student would otherwise be eligible for AUSTUDY from 1 January in the year of study.
Regulation 5 Regulation 12C (What happens if a student's entitlement alters?)
Regulation 12C provides that an authorised person may make a further determination of entitlement to amend or replace the existing one if the Department receives information that shows the existing determination to be incorrect.
Sub-regulation 5.1 omits "authorised person" from regulation 12C and substitutes "the Secretary". This brings the decision-making regime into line with the Student (Youth Training Allowance) Amendment Act 1994.
Regulation 6 Regulation 13 (Do assets affect AUSTUDY?)
Regulation 13 provides that a student who qualifies for a living allowance cannot get AUSTUDY if the level of student, spouse or family assets exceeds specified maximum values.
Sub-regulation 6.1 omits "paragraph 97(a), (b), (ba) or (c)" from item (b) in the table in subregulation 13(1) and substitutes "sub-regulation 97(1)". This clarifies that the spouse assets test does not apply while a student's spouse gets certain income support payments, including the new partner and youth training allowances.
Sub-regulation 6.2 inserts new sub-regulation 13(4). This provides that the assets test does not apply to a student:
• whose parent or spouse held a health care card issued by the Department of Social Security under the National Health Act 1953 when the student applied for assistance;
• who, if the assets test were applied, would not bye qualified for a living allowance;
• who qualified for assistance in 1994 in the absence of the assets test; and
• was paid assistance in 1994.
In these cases, the assets test does not apply for the period from the date the health care card was issued until the date it expired. This amendment covers the small number of students were affected by the administrative decision to provide assistance to Health Care Card holders without applying the assets test, which was subsequently reversed.
Regulation 7 Regulation 18A (What is excluded from assets?: (e) farm assets in an "exceptional circumstances drought affected area")
Sub-regulation 7.1 inserts new regulation 18A which provides that the assets of a person determined by a State or Territory Rural Adjustment Scheme authority to be living in an area within an exceptional circumstance drought affected area do not include his or her farm assets in that area. This concession is available to persons who do not qualify for, or do not apply for, the new Drought Relief Payment (see Regulations 29 and 32) but nevertheless have a farm in an exceptional circumstances drought affected area.
Regulation 8 Regulation 19 (How are business assets treated?)
Regulation 19 provides for the treatment of business assets under the assets test.
Sub-regulation 8.1 omits "(including a de facto spouse)" from sub-regulation 19(1) to be consistent with the sub-regulation 93(2) definition of "spouse" adopted in Regulation 29.
Regulation 9 Regulation 22 (Excluded: (b) students getting certain pensions and allowances)
Regulation 22 provides that certain students cannot get AUSTUDY. Sub-regulation 22(2) provides that a student cannot get AUSTUDY for a period in a year before the start of a course if he or she gets jobsearch, newstart or sickness allowance or special benefit. Subregulation 22(3) provides that a student cannot get AUSTUDY if the student gets jobsearch allowance or newstart allowance and is doing a course of six months duration or less at the direction of the Secretary to the Department of Social Security. Sub-regulations 22(4) and (5) provide that a student who has commenced a course of longer than 6 months duration, or of 6 months duration or less at the direction of the Secretary to the Department of Social Security, and who, immediately before he or she began the course, received jobsearch allowance or newstart allowance cannot get AUSTUDY for twenty-one days after he or she starts the course.
Sub-regulation 9.1 omits "period under the Social Security Act 1991" from sub-regulation 22(2) and substitutes "period".
Sub-regulation 9.2 omits paragraphs 22(2)(a), (b), (c) and (d) and substitutes new subparagraphs 22(2)(a)(i), (ii), (iii), (iv) and (v). Subparagraphs 22(2)(a)(i) to (iv) retain the existing fist of payments referred to in sub-regulation 22(2'). New subparagraph 22,(2)(a)(v) incorporates partner allowance into the list of payments. this means that a student cannot get AUSTUDY before the start of his or her course for a period in which he or she got partner allowance.
Sub-regulation 9.3 inserts paragraph 22(2)(b) to add the youth training allowance into the list of payments. This means that a student cannot get AUSTUDY before the start of his or her course for a period in which he or she got youth training allowance.
Sub-regulation 9.4 omits "1991;" from paragraph 22(3)(a) and substitutes "1991 or youth training allowance under the Student and Youth Assistance Act 1973". Sub-regulation 9.5 omits "Secretary" from paragraph 22(3)(c) and substitutes "Secretary, or the Secretary". These amendments mean that a student cannot get AUSTUDY if the student gets youth training allowance and is directed by the Secretary to the Department of Employment, Education and Training or the Secretary to the Department of Social Security to do a course of 6 months duration or less.
Sub-regulation 9.6 omits "Secretary" from subparagraph 22(5)(a)(ii) and substitutes "Secretary, or the Secretary". Sub-regulation 9.7 omits 1991;" from paragraph 22(5)(b) and substitutes "1991 or youth training allowance under the Student and Youth Assistance Act 1973", These amendments mean that a student who was getting youth training allowance immediately before commencing a course of longer than 6 months duration, or a course of 6 months duration or less at the direction of the Secretary to the Department of Employment, Education and Training or the Secretary to the Department of Social Security, cannot get AUSTUDY for 21 days after commencing the course.
Regulation 10 Regulation 30 (Workload: (b) secondary students studying at other institutions or by correspondence)
Regulation 30 sets out the workload rules for secondary students studying at other (non-school) institutions or by correspondence. Sub-regulation 30(6) sets out the normal amount of full time work for these students studying for the various state and territory year 11 and 12 awards.
Sub-regulation 10.1 omits the existing outdated reference to the year 12 Tasmanian award and substitutes "Tasmanian Certificate of Education with a normal amount of full time workload of 600 hours chosen from A, B or C type subjects". This amendment corrects the reference. without altering the effect of the provision.
Regulation 11 Regulation 38 (Levels of tertiary courses)
AUSTUDY is intended to allow students to complete their secondary schooling, gain an initial tertiary qualification and progress to higher tertiary qualifications. For this reason tertiary courses are grouped in regulation 38 according to the level of study. The levels are Group A (graduate courses), Group B (undergraduate courses - except Group C courses), Group C (associate diplomas and 2 year undergraduate diplomas) and Group D (TAFE courses - except Group C courses). Courses for the degree of Master or Doctor are not included in any grouping.
Sub-regulation 11.1 adds new paragraph 38(3)(e) to clarify that graduate certificate courses are included in Group A.
Sub-regulation 11.2 inserts new paragraph 38(4)(ab) to provide that a Master degree course that has concurrent Bachelor and Master level study is included in Group B.
Regulation 12 Regulation 56 (Use the AUSTUDY application form)
Regulation 56 provides that a student can only apply for AUSTUDY by completing and signing the AUSTUDY application form, and lodging it at any office of the Department.
Sub-regulation 12.1 omits "form" and substitutes "form approved by the Secretary". This means that the form on which a student applies for AUSTUDY must be a form approved by the Secretary to the Department of Employment, Education and Training.
Regulation 13 Regulation 61 (What is the maximum living allowance?)
Regulation 61 provides the maximum living allowances for various categories of student. Paragraph 61(a) provides the "sole parent rate", paragraph 61(b) provides the "married rate" and paragraph 61 (c) provides the age related standard, independent and away from home rates. Paragraph 61 (c) also provides the special rate available to people transferring to AUSTUDY from long term receipt of specified Social Security payments.
Sub-regulation 13.1 omits paragraph 61(a) and substitutes new paragraph 61(a) to increase the maximum rate of living allowance from $8,132 to $8,270 by reference to the Consumer Price Index. Subregulation 13.1 also inserts new paragraph 61(ab) to provide that a "sole parent" student described in paragraph 61 (a) who has been receiving $8,614 and has no dependent child under the age of 16 years can receive $8,614.
Sub-regulation 13.2 omits "another" from paragraph 61(c) and substitutes "any other". This recasts the current provision without changing its substance.
Sub-regulation 13.3 omits the table in paragraph 61 (c) and substitutes a new table of rates of living allowances. The rates are increased by reference to the Consumer Price Index.
Sub-regulation 13.4 adds new sub-regulation 61(2) to provide that if a student pays, or has a liability to pay, maintenance for a child, the child is taken not to be a dependent child of the student for the purposes of the regulation 61.
Note: amendments to paragraph 61 (b) are contained in Regulation 42 of these amendments.
Regulation 14 Regulation 63 (Who gets special rate living allowance?)
Regulation 63 sets out those students who can get the special rate of living allowance. Paragraph 63(1)(a) provides that students who were 21 years old or more when they started their course and had been getting certain income support payments for at least 26 of the 39 weeks immediately before they started their course can get the special rate of living allowance.
Sub-regulation 14.1 omits "39 weeks" from paragraph 63(1)(a) and substitutes "39 weeks, a benefit of any of the following kinds (except a training allowance for a course approved for the AUSTUDY scheme)". This recasts the provision without changing its substance.
Sub-regulation 14.2 omits "sickness allowance or special benefit" from subparagraph 63(1)(a)(i) and substitutes "sickness allowance, special benefit or partner allowance". This means that students who received partner allowance for 26 of the 39 weeks immediately before they started their course are eligible to get the special rate of living allowance.
Sub-regulation 14.3 omits subparagraph 63(1)(a)(ii). The subparagraph, which refers to the Social Security Act 1947, is no longer necessary.
Sub-regulation 14.4 amends paragraph 63(1)(a) in two ways. Firstly, it adds new subparagraph 63(1)(a)(iii) to include Jobskills in the fist of relevant payments. Second, subregulation 14.4 adds new subparagraph 63(1)(a)(iv) to add payments listed in Schedule 1 to paragraph 63(1)(a). This means that students who received Jobskills or any of the pensions and allowances listed in Schedule 1 for 26 of the 39 weeks immediately before they started their course are eligible to get the special rate of living allowance.
Paragraph 63(1)(ab) is similar to paragraph 63(1)(a) except that it provides the special rate of living allowance to a student who, at the start of their course, was the spouse of a person who was getting, for at least 26 of the preceding 39 weeks, certain income support payments at the "married rate" because they were the spouse of the student. These students can get the special rate of living allowance if they are separated from the spouse and are not the spouse of another person.
Sub-regulation 14.5 omits subparagraph 63(1)(ab)(ii) and inserts new paragraph 63(1)(ab)(ii). This has three effects. It omits the reference in subparagraph 63(1)(ab)(ii) to subparagraph 63(1)(a)(ii) and substitutes a reference to paragraph 63(1)(a). It also omits "(at law or de facto)" from subparagraph (ab)(ii) as this expression is unnecessary in light of the definition of "spouse" (see Regulation 29). The amendment also provides that a student who received partner allowance for the requisite amount of time before commencing their course can get the special rate of living allowance.
Sub-regulation 14.6 omits "(at law or de facto)" from subparagraph 63(1)(ab)(iv) as the phrase is unnecessary in light of the definition of "spouse" (see Regulation 29).
Regulation 15 Regulation 64 (Is there additional allowance for a spouse?)
Regulation 64 provides for the AUSTUDY dependent spouse allowance. Sub-regulation 64(1) provides for an increase in the "married rate" of living allowance for students who have ,a dependent spouse and at least one dependent child. The increase is calculated in accordance with the formula in sub-regulation 64(1).
Sub-regulation 15.1 omits "1991; " from paragraph 64(1)(c) and substitutes "1991 or youth training allowance under the Student and Youth Assistance Act 1973". This means that a student cannot get the dependent spouse allowance if his or her spouse gets youth training allowance.
Note: the amendment to the amount of living allowance referred to in the formula in subregulation 64(1) is contained in Regulation 42.
Regulation 16 Regulation 67 (Who gets the independent rate?)
Regulation 67 provides that marriage (paragraph 67(b)) and homelessness (paragraph 67(g)) are two of the conditions that will qualify a student to get the independent rate of living allowance.
Sub-regulation 16.1 omits paragraph 67(b). This means that marriage is no longer described as a condition for qualifying for the independent rate of living allowance. This brings AUSTUDY into line with the requirements of the Sex Discrimination Act 1984.
Sub-regulation 16.2 omits "homeless" from paragraph 67(g) and substitutes "unreasonable to live at home" as described in regulation 74 (see Regulation 21). This provides a new nomenclature to describe students who do not live at home with their parents.
Sub-regulation 16.3 adds new sub-regulation 67(2). This provides that a student who:
• is entitled to get AUSTUDY; and
• has previously received the independent rate of living allowance because of marriage
is entitled to receive the independent rate of living allowance. This ensures that students who were previously paid the independent rate of living allowance because they were, or had been, married are not disadvantaged by the change set out in Regulation 18.
Regulation 17 Regulation 68 (Independent student: (a) age)
Regulation 68 provides that a student qualifies as independent on and after his or her 23rd birthday. Subregulation 17.1 reduces the age at which a student qualifies as independent to 22.
Regulation 18 Regulation 69 (Independent student: (b) marriage)
Regulation 69 provides that a student qualifies as independent if he or she is married or has previously been married.
Sub-regulation 18.1 omits regulation 69. This means that students who are married and students who are living in de facto relationships are treated equally. Neither will qualify for the independent rate of living allowance because of marriage or being in a de facto relationship. Independent students with a spouse do not qualify for travel allowance if they are living with their spouse. This complies with the requirements of the Sex Discrimination Act 1984.
Regulation 19 Regulation 70 (Independent student: (c) has a dependent child)
Sub-regulation 70(1) provides that a student qualifies as independent if the student has, or had, a dependent child who is, or was, wholly or substantially dependent on the student. Subregulation 70(2) provides that a child is not regarded as dependent on the student if the student pays maintenance for the child.
Sub-regulation 19.1 omits sub-regulation 70(2) and substitutes a new sub-regulation. This recasts the provision without changing its substance. However, it is consistent with other similar provisions in the regulations.
Regulation 20 Regulation 71 (Independent student: (d) periods in the workforce)
Sub-regulation 71(1) provides that a student qualifies as independent through periods in the workforce if the student has, for at least 156 of the last 268 weeks, been one or more of the following:
(a) in full time paid employment;
(b) on paid leave from that employment;
(c) registered with the Commonwealth Employment Service;
(d) unable to work full time because of illness or incapacity;
(e) receiving certain Social Security income support payments;
(f) supported by a religious order or institution; or
(g) in lawful custody.
Sub-regulation 20.1 omits "sickness allowance or special benefit" from subparagraph 71(1)(e)(i) and substitutes "sickness allowance, special benefit or partner allowance". This means that periods during which a student received partner allowance count towards the requisite 156 weeks.
Sub-regulation 20.2 omits subparagraph 71 (1)(e)(ii) and substitutes a new subparagraph 71(1)(e)(ii). The existing subparagraph, which refers to payments made under the Social Security Act 1947, is no longer necessary. The new subparagraph means that periods during which a student received youth training allowance count towards the requisite 156 weeks.
Regulation 21 Regulation 74 (Independent student: (g) homelessness)
Regulation 74 provides the criteria by which a student can qualify as independent through being homeless. Paragraph 74(1)(a) provides that a student qualifies as homeless if the student does not live with his or her parent(s) either because the student's physical or mental health would be substantially at risk from domestic violence, sexual harassment, extreme family breakdown or another similar and exceptional circumstance. Paragraph 74(1)(b) provides that a student qualifies as homeless if the student does not live with his or her parent(s) because the parent(s) cannot give the student a home because of the physical or mental incapacity of the parent(s), or because of the imprisonment of the parent(s).
Sub-regulation 74(2) provides that, to remain eligible, the student must not be the recipient of support provided by a parent or another person, the Commonwealth, a State or a Territory. The student's de facto spouse must not be getting a: regular payment from the Commonwealth, a State or a Territory at the married rate because he or she is the spouse of the student.
Sub-regulation 21.1 omits regulation 74 and substitutes new regulation 74. The amendment retains the substance of the current provisions. However, the new provision is consistent with new youth training allowance provisions governing payments to young people who are unable to live at home with their parents. There is one minor exception. Paragraph 74(e) provides that a student whose spouse gets a regular payment from the Commonwealth, a State or Territory at a higher rate because the student is his or her spouse does not qualify as independent under this provision.
Regulation 22 Regulation 82 (Effect of student income-test on living allowance)
Sub-regulation 82(1) provides that a student can get the maximum living allowance only if his or her income for the "income-test period" is not more than a specified amount. Subregulation 82(3) defines "income-test period" as the number of days the student would, apart from regulation 82, be entitled to get AUSTUDY. This takes account of a student's income during his or her period of eligibility in the year of study.
Sub-regulation 22.1 omits sub-regulation 82(1) and substitutes new sub-regulation 82(1). This provides that the student can get the maximum living allowance in the entitlement period only if his or her relevant income is not more than:
number of days in the year.
New sub-regulation 82(1A) provides that a student's relevant income is:
RIP
where:
T is the student's total income in the relevant income period;
EP is the entitlement period; and
RIP is the relevant income period.
Sub-regulation 22.2 omits sub-regulation 82(3) and substitutes new sub-regulation 82(3). This provides definitions of "entitlement period" and "relevant income period" for the purposes of regulation 82. An "entitlement period" is the number of days during the periods 1 January to 30 June and 1 July to 31 December that the student would, apart from this regulation, be entitled to AUSTUDY. The "relevant income period" for the period 1 January to 30 June in the year of study is the number of days the student is entitled to AUSTUDY in the financial year ending in the year of study. The "relevant income period" for the period 1 July to 31 December is the number of days the student is entitled to AUSTUDY in the financial year starting in the year of study.
The overall effect of these changes is that benefits for the period 1 January to 30 June in a year of study are calculated using income earned in the financial year ending in the year of study. Benefits for the period 1 July to 31 December in a year of study are calculated using income earned in the financial year beginning in the year of study. There is a transitional provision (Regulation 43) to ensure that students who are income tested in 1994 on income earned in the period 1 July 1994 to 31 December 1994 are not income tested again on that income.
Regulation 23 Regulation 83 (What is a student's income?)
Regulation 83 sets out what comprises student income. Paragraph 83(2)(c) provides that student income does not include jobsearch allowance, newstart allowance, sickness allowance or special benefit under the Social Security Act 1991.
Sub-regulation 23.1 omits "sickness allowance or special benefit" from paragraph 83(2)(c) and substitutes "sickness allowance, special benefit or partner allowance". This means that partner allowance is not included in student income.
Sub-regulation 23.2 adds new paragraph 83(2)(ca). This means that youth training allowance is not included in student income.
Regulation 24 Regulation 85 (Whose income is taken into account?)
Regulation 85 provides that the parental income test is applied in calculating a student's entitlement to a standard or away from home living allowance. Sub-regulation 85(1) provides that the parental income test takes account of the income of a student's parents. Subregulation 85(2) defines "parent" as:
(a) a natural or adoptive parent with whom the student normally lives; and
(b) a spouse, including a de facto spouse, of a student's parent if the student normally lives with the spouse; and
(c) any other adult on whom the student is wholly or substantially dependent (not including a de facto spouse of the student); and
(d) the natural or adoptive parent with whom the student last lived, if the student does not live with either parent and if there is no supporting adult.
Sub-regulation 24.1 omits "a spouse, including a de facto spouse" from paragraph 85(2)(b) and substitutes "a spouse". Sub-regulation 24.2 omits "de facto" from paragraph 85(2)(c).
The phrases to be omitted are unnecessary in fight of the new definition of "spouse" (Regulation 29).
Regulation 25 Regulation 86 (What is parental income?)
Regulation 86 sets out what is parental income. Sub-regulation 86(1) provides that parental income is the amount calculated by the formula (GPI + FB) - DC where:
• GPI means the income of the student's parent(s) in the relevant year;
• FB means the value of fringe benefits received by the student's parent(s) in the relevant year; and
• DC means the deductions for children described in regulation 87.
Sub-regulation 25.1 omits the formula in sub-regulation 86(1) and substitutes (GPI + FB + NRPL) -DC where GPI, FB and DC retain their meanings outlined above. NRPL is explained in sub-regulation 25.2.
Sub-regulation 25.2 inserts "NRPL" into sub-regulation 86(1). NRPL means the net rental property loss which is the amount by which expenses incurred by the student's parent or parents in relation to a rental property exceed the parent's or parents' gross income from the property in the relevant year.
Sub-regulation 25.3 inserts new sub-regulation 86(1A). Paragraph 86(1A)(a) defines "rental property" as a residential or commercial property (whether inside or outside Australia) for which the parent or parents receive a premium or an amount as rent. Paragraph 86(1A)(b) provides that if the gross income from the rental property exceeds the expenses incurred in relation to the property, the NRPL is NIL.
Sub-regulation 86(8) provides that the value of the fringe benefits received by a student's parent(s) is the amount contained in a statement made by the employer of the parent as the amount for which tax is payable under the Fringe Benefits Tax Assessment Act 1986 (the FBTAA).
Sub-regulation 25.4 omits "1986" from sub-regulation 86(8) and substitutes "1986, or would have been payable if a benefit were not exempt under section 57 or 57A of that Act, or the employer were not a rebatable employer for the purposes of section 651 of that Act." Where this provision applies, the value of the fringe benefits received by the parent is the value in the statement.
Regulation 26 Regulation 87 (What are the deductions for children?)
Regulation 87 provides deductions from parental income for children, apart from the student, who are dependent on the student's parent or parents. Sub-regulation 87(1) provides that the deductions apply to children who are wholly or substantially dependent on a parent and are under 16 years old, or 16, or over but under 23 years and in full time study, and not independent under regulation 67 or getting a payment listed in Schedule 1. Sub-regulation 87(3) provides that a child is not dependent on a parent if the parent pays maintenance for the child.
Sub-regulation 26.1 omits "23 years" from subparagraph 87(1)(b)(ii) and substitutes "22 years". This is consistent with the reduction in the age of independence (see Regulation 17).
Sub-regulation 26.2 omits sub-regulation 87(3) and substitutes new sub-regulation 87(3). This recasts the provision without changing its meaning. However, it is consistent with similar provisions elsewhere in the regulations.
Regulation 27 Regulation 90 (Concession to the parental income test: (b) fall in income)
Regulation 90 provides a concession to the parental income test where parental income in the current financial year is substantially less than it was in the previous financial year. The elements of the income test in regulation 90 are broadly the same as they are in regulation 86, however GPI and FB relate to the financial year ending in the year of study.
Sub-regulation 27.1 adds new paragraph 90(1)(c). This adds a net rental property loss (NRPL), as described in sub-regulation 25.2 of these regulations, to parental income for the purposes of the concession. The relevant NRPL is the loss incurred in the financial year ending in the year of study.
Regulation 28 Regulation 91 (Concession to the parental income test: (c) pensions and allowances
Regulation 91 provides further concessions to the parental income test. Sub-regulation 91(1) provides that the parental income test is not applied while a student's parent gets certain income support payments. Sub-regulation 91(1A) provides that the parental income test is not applied for a period that a student's parent is entitled to a health care card issued by the Department of Social Security for the purposes of the National Health Act 1953.
Sub-regulation 28.1 inserts new paragraph 91(1)(ac). This means that the parental income and assets tests are not applied to farm families in exceptional circumstances drought affected areas. This enables students from these families to obtain maximum AUSTUDY at the appropriate rate, from' 1 October 1994, while their parent(s) are in receipt of the new Drought Relief Payment.
Sub-regulation 28.2 omits "is entitled to" from sub-regulation 91(1A) and substitutes "holds". This means that the parental income test does not apply only for a period that the student's parent actually holds a health care card.
Regulation 29 Regulation 93 (When does the spouse income test apply?)
Regulation 93 provides for the application of a spouse income test to a student who qualifies for an independent living allowance and has a spouse. Sub-regulation 93(2) provides that a person is a student's spouse if the student:
• is married to the person and not separated from him or her; or
• lives with the person in a de facto relationship and there is a child from this relationship who is wholly or substantially dependent on the student or the de facto spouse; or
• has been living in a de facto relationship with the person for at least two years.
Sub-regulation 29.1 omits paragraphs 93(2)(b) and (c) and substitutes new paragraph 93(2)(b). This results in a new definition of "spouse" that complies with the requirements of the Sex Discrimination Act 1984. A person is, under the amended definition, considered to be a student's spouse if the person is married to the student, or living with the student in a de facto relationship. This ensures that married students and students in de facto relationships are treated equally in the application of the spouse income and assets tests, and in their eligibility to fares allowance.
Regulation 30 Regulation 94 (What is the spouse's income?)
Regulation 94 describes spouse income for the purposes of the spouse income test. Subregulation 94(1) provides that spouse income includes taxable income, other income on which income tax is payable to a foreign country, maintenance received and the value of fringe benefits received.
Sub-regulation 30.1 adds new paragraph 94(1)(d). This adds the amount of a net rental property loss (NRPL) to spouse income. NRPL is described in paragraph 94(1)(d) as the amount by which expenses incurred by the student's spouse, in relation to a rental property, exceed the spouse's gross income from the property in the relevant year.
Sub-regulation 30.2 inserts new sub-regulation 94(1AA). New paragraph 94(1AA)(a) provides that a "rental property" is a residential or commercial property (whether inside or outside Australia) for which the spouse receives a premium or an amount as rent. New paragraph 94(1AA)(b) provides that, if the gross income from the rental property exceeds the expenses incurred in relation to the property, the NRPL is NIL.
Sub-regulation 94(1B) provides that the value of the fringe benefits received by a student's spouse is the amount contained in a statement made by the employer of the spouse as the amount for which tax is payable under the Fringe Benefits Tax Assessment Act 1986 (the FBTAA).
Sub-regulation 30.3 omits "1986" from sub-regulation 94(1B) and substitutes "1986, or would have been payable if a benefit were not exempt under section 57 or 57A of that Act, or the employer were not a rebatable employer for the purposes of section 65J of that Act." Where this provision applies, the value of the fringe benefits received by the spouse is the value in the statement.
Regulation 31 Regulation 96 (Concession to the spouse's income test: (b) fall in income)
Regulation 96 provides a concession to the spouse income test where spouse income in the current financial year is substantially less than it was in the previous financial year. Spouse income (as described in regulation 94) in the current financial year becomes the relevant income.
Sub-regulation 31.1 adds new paragraph 96(1)(c) to include net rental property loss (NRPL) as described in sub-regulation 3 0. 1 of these amendments. The relevant loss is the NRPL incurred in the financial year ending in the year of study.
Regulation 32 Regulation 97 (Concession to the spouse's income test: (b) pensions and allowances)
Regulation 97 provides further concessions to the spouse income test. Sub-regulation 97(1) provides that the spouse income test is not applied for a period that a student's spouse gets certain income support payments. Sub-regulation 97(1A) provides that the spouse income test is not applied for a period that a student's spouse is entitled to a health care card issued by the Department of Social Security under the National Health Act 1953.
Sub-regulation 32.1 inserts new paragraph 97(1)(baa) to add the new youth training allowance to the payments listed. This suspends the spouse income and ' assets tests while the student's spouse gets the youth training allowance. The student is able to obtain maximum AUSTUDY at the appropriate rate during this time.
Sub-regulation 32.2 inserts new paragraph 97(1)(bb) to add the new Drought Relief Payment (DRP) to the payments listed. This suspends the spouse income and assets tests while the student's spouse gets the DRP. The student is able to obtain maximum AUSTUDY at the appropriate rate during this time.
Sub-regulation 32.3 omits 'Is entitled to" from sub-regulation 97(1A) and substitutes "holds". This suspends the spouse income test only for a period that the student's spouse actually holds a health care card.
Regulation 33 Regulation 99 (Who can get the fares allowance?)
Sub-regulation 99(1) provides that students can get fares allowances for certain journeys. Sub-regulation 99(2) provides that certain students cannot get fares allowance. Paragraph 99(2)(a) provides that a student who fives With his or her spouse (including a de facto spouse) during the academic year cannot get fares allowance. Paragraph 99(2)(b) provides that a student who gets the independent rate of living allowance and does not have a spouse (including a de facto spouse) cannot get fares allowance.
Sub-regulation 33.1 omits paragraph 99(2)(a) and substitutes new paragraph 99(2)(a). This provides that an independent student who lives with his or her spouse during the academic year cannot get fares allowance. Dependent students who have a spouse are eligible to get fares allowance for travel between their home and their parent's home. Sub-regulation 33.1 omits "(including de facto spouse)" from paragraph 99(2)(a). This expression is unnecessary in light of the definition of "spouse" (see Regulation 29).
Sub-regulation 33.2 omits "(including de facto spouse)" from subparagraph 99(2)(b)(ii). This expression is unnecessary in light of the definition of "spouse" (see Regulation 29).
Regulation 34 Chapter 6A - What is rent assistance?
Regulation 34 provides for new Chapter 6A. Sub-regulation 34.1 inserts new "Chapter 6A - What is rent assistance?".
Note: the commentary that follows is set out in new sub-regulation order.
Regulation 102A provides who can get rent assistance. Paragraph 102A(1)(a) provides that a student can get rent assistance if the student:
• pays rent;
• is under 22 years of age;
• receives AUSTUDY under regulation 72, 73, 74, 75 or 76 (these regulations provide for a "reviewable" independent rate of living allowance); and
• does not have a dependent child.
Paragraph 102A(b) provides that a student can get rent assistance if the student:
• pays rent;
• gets the away from home rate of flying allowance under sub-regulation 77(3); and
• lives away from his or her carer's home to study.
Sub-regulation 102A(2) provides that the fact that a student pays, or is liable to pay, maintenance for a child does not, alone, make the child a dependent child of the student.
Regulation 102B provides for the treatment of a student who turns 22 years of age. Paragraph 102B(a) provides that a student who receives rent assistance under paragraph. 102A(1)(a) and subsequently turns 22 years of age can continue to get rent assistance until the end of his or her current course if he or she continues to get AUSTUDY. Paragraph 102B(b) provides that a student who receives rent assistance under paragraph 102A(1)(a) and subsequently turns 22 years of age can continue to get rent assistance until the end of his or her study, if the student commences or recommences the study within 12 months of discontinuing or completing his or her current course, and continues to get AUSTUDY.
Regulation 102C provides for the treatment of a student who has a spouse. Sub-regulation 102C(1) provides that a student who receives rent assistance and has a spouse or subsequently gets a spouse can continue to receive rent assistance. This is subject to limitations. If the student's spouse is not a student and does not get rent assistance under the Social Security Act 1991, the student can continue to receive rent assistance if the spouse's income does not reduce the student's living allowance, and the student is otherwise qualified to receive rent assistance.
Sub-regulation 102C(2) provides that the student can continue receiving rent assistance until. the end of his or her current course or until the end of his or her study if the student commences or recommences study within 12 months after discontinuing or completing his or her current course and continues receiving AUSTUDY.
Sub-regulation 102(3) provides that, if the student's spouse is a student who gets AUSTUDY or AB STUDY, the student can continue to receive rent assistance if he or she is otherwise qualified. In these cases, the spouse income test does not apply and the student's eligibility is determined as if he or she had no spouse.
Sub-regulation 102C(2) provides that the student who has, or subsequently gets, a spouse can continue receiving rent assistance until the end of his or her current course, or until the end of his or her study if the student commences or recommences the study within 12 months of discontinuing or completing his or her current course, and continues to get AUSTUDY.
Regulation 102D provides that, for the purposes of chapter 6A, certain amounts are "rent". Paragraph 102D(1)(a) provides that amounts are "rent" in relation to a student if they are payable at least every three months as a condition of occupying his or her main place of residence while studying.
Paragraph 102D(1)(b) provides that amounts payable at least every three months for accommodation in public housing provided to another person from whom the student is leasing are "rent". Paragraph 102D(1)(c) provides that amounts paid by the student towards household expenses, except food, are "rent" if they are regarded by the person to whom they are paid as being in place of rent.
Sub-regulation 102D(2) provides that, except for amounts referred to in paragraph 102D(1)(b), amounts paid by a student for accommodation in public housing are not "rent" for the purposes of this regulation. This means that students paying rent for accommodation in government provided housing or other public housing. cannot get rent assistance.
Sub-regulation 102D(3) contains the "2/3rds rule" which provides that the portion of a total payment for board and lodging that is to be accepted as "rent", where the exact amount of "rent" cannot be identified, is 2/3 of the total amount paid.
Regulation 102E provides that a student can only get rent assistance where the "rent" they pay is more than $30.90 a week.
Regulation 102F provides the amount of rent assistance payable. Sub-regulation 102F(1) provides that rent assistance is to be payable at the rate of seventy five cents for every dollar of "rent" the student pays above $30.90 a week. Sub-regulation 102F(2) provides that maximum rent assistance is to be $34.60 a week.
Regulation 102G deals with the effect of the student income test on rent assistance. Subregulations 102G(1), (2) and (3) provide that the mechanics of the student income test are the same as discussed in sub-regulations 22.1 and 22.2 of these regulations.
Sub-regulation 102G(4) provides that the maximum amount of rent assistance a student can receive is reduced by one dollar for every two dollars by which the student's income exceeds the amount calculated under the formula in sub-regulation 102G(1).
Sub-regulation 102H provides for the treatment of rent assistance clients transferring to AUSTUDY from Social Security payments. A student who has received more rent assistance under the Social Security Act 1991 than the amount calculated under these regulations, and who no longer qualifies for that rent assistance because he or she is entitled to AUSTUDY, is eligible to receive the greater amount for up to three months after qualifying for AUSTUDY.
Regulation 35 Chapter 7 (Proceedings of the Student Assistance Review Tribunal)
Background
Decisions relating to student assistance matters are reviewable internally and, if the student is still not satisfied, externally by the Student Assistance Review Tribunal (SART). Paragraph 56(c) of the Student Assistance Act 1973 provides for regulations to be made in relation to the practice and procedure of the SART including provision for and in relation to the giving of evidence before, and the production of documents to, the SART. AUSTUDY regulations 103, 104, 105, 106 and 107 contain these provisions. The SART is to be abolished, and its functions are to be transferred to the Social Security Appeals Tribunal (SSAT).
Sub-regulation 35.1 omits regulations 103 to 107 inclusive which are unnecessary with the abolition of the SART.
Regulation 36 Regulation 108 (Insufficient information or evidence about a student)
Regulation 108 provides the Department's powers to obtain additional information or evidence. Subregulation 108(1) provides that an authorised person may request further information or evidence from the student or another person. Sub-regulation 108(2) provides that the request must be in writing and must contain advice that benefits cannot commence or that benefits will cease (as the case may be) if the request is not satisfied within 14 days.
Sub-regulation 36.1 omits "an authorised person" from sub-regulation 108(1) and substitutes "the Secretary". This provides consistent terminology between the regulations and the Student and Youth Assistance Act 1973.
Sub-regulation 36.2 adds new sub-regulations 108(4), (5) and (6). New sub-regulation 108(4) enables the Secretary to cease payments when information or evidence requested in accordance with sub-regulation 108(2) has not been supplied within 14 days of the request. New paragraph 108(5)(a) enables the Secretary to recommence payments at the appropriate rate when the request has been complied with New paragraph 108(5)(b) enables the Secretary to pay the student back to the date of suspension. New sub-regulation 108(6) provides that payments under sub-regulation 108(5) may be made at the rate existing before the suspension or a different rate depending on the student's eligibility based on the information or evidence given.
Regulation 37 Regulation 109 (What changes in circumstance must the Department be told about?)
Regulation 109 lists the prescribed events which a student must tell the Department about:
Sub-regulation 37.1 omits subparagraphs 109(1)(a)(xi), (xii) and (xiii) and substitutes new subparagraph 109(1)(a)(xi). This requires students to tell the Department when they gain a spouse.
Sub-regulation 37.2 adds new subparagraph 109(1)(a)(xviii). This requires students to tell the Department about changes in their circumstances that may effect their entitlement to rent assistance.
Sub-regulation 37.3 inserts new subparagraph 109(1)(b)(via). This requires students to tell the Department when the student's spouse starts receiving youth training allowance.
Regulation 38 Schedule 1 (Pensions and allowances)
Sub-regulation 38.1 omits "Widowed person allowance" from item 5 of Group A and substitutes "Bereavement allowance" to correct the name of the payment.
Sub-regulation 38.2 omits item 10 from Group A. The reference to this payment is inserted into Group B (see sub-regulation 38.5 below).
Sub-regulation 38.3 omits "Service pension (wife)-" from item 10 in Group B and substitutes "Wife pension-" to correct the name of the payment.
Sub-regulation 38.4 omits item 11 in Group B and substitutes new item 11 "Service pension (partner)" to correct the reference to the payment.
Sub-regulation 38.5 adds new item 13 ("Rehabilitation allowance") to Group B.
Regulation 39 Schedule 2 - Institutions that are to be treated as TAFE institutions
Schedule 2 provides a list of institutions that are to be treated as TAFE institutions for the purposes of regulation 33.
Sub-regulation 39.1 omits schedule 2 and substitutes a new schedule 2. This updates the list of institutions that are to be treated as TAFE institutions.
Regulation 40 Schedules 4 and 5
Schedule 4 provides the approved form of a notice in which a student, under regulation 103, consents to a Student Assistance Review Tribunal consisting of only two members. Schedule 5 provides the approved form of a summons to witnesses under regulation 104.
Sub-regulation 40.1 omits schedules 4 and 5 which are unnecessary with the omission of chapter 7 of the regulations (Regulation 35).
Regulation 41 Schedule 6
Schedule 6 contains the fringe benefits provisions for the purposes of sub-regulations 86(9) and 94(1 C) of the AUSTUDY regulations.
Sub-regulation 41.1 omits "is" from the definition of "employee" in paragraph (a) of Clause 1 and substitutes "is, or was". This clarifies that the definition of "employee" covers employee/employer relationships of the past.
Sub-regulation 41.2 omits "performs" from the definition of "employee" in subparagraph (b)(i) of Clause 1 and substitutes "performs, or has held or performed". This clarifies that the definition of "employee" covers employee/employer relationships of the past.
Sub-regulation 41.3 omits "is" from the definition of "employee" in subparagraph (b)(ii) of Clause 1 and substitutes "is, or was". This clarifies that the definition of "employee" covers employee/employer relations hips of the past.
Sub-regulation 41.4 omits "is" from the definition of "employee" in paragraph (b)(iii) of Clause 1 and substitutes "is, or was". This clarifies that the definition of "employee" covers employee/employer relationships of the past.
Sub-regulation 41.5 inserts "paid," after "who" in subparagraph (a) of Clause 1. This clarifies that the definition of "employer" covers employee/employer relationships of the past.
Sub-regulation 41.6 omits Clause 10 and substitutes a new Clause 10. This clarifies that an employer's payment, whether directly or indirectly, of rental, lease or mortgage expenses on behalf of an employee is a housing benefit.
Sub-regulation 41.7 omits "locations" from subclause 12(5) and substitutes "locations (except as affected by subclause (7))". Sub-regulation 41.8 adds new subclause 12(7)(d). These amendments provide that housing benefits supplied to Australian Defence Force members by the Commonwealth are taken to be in a special housing location. This ensures concessional treatment of these housing fringe benefits.
Sub-regulation 41.9 omits "subclause (2) or (3)" from step 2 of subclause 16(1) and substitutes "subclause 16(2)".
Sub-regulation 41.10 omits subclause 16(2) and substitutes a new subclause. This updates the notional interest rates to be used when valuing a low interest loan fringe benefit.
Sub-regulation 41.11 omits subclause 16(3) which, given the restructure of subclause 16(2) outlined in sub-regulations 41.9 and 41.10, is no longer necessary.
Regulation 42 Further amendments
Sub-regulation 42.1 amends the provisions listed in column one of the table below by omitting the amounts shown in column two of the table and substituting the amounts shown in column three of the table. Column four of the table refers to the factor (increases in either average weekly earnings, AWE, or the Consumer Price Index, CPI) by which the column three amounts were calculated.
| Column 1
- provision
|
Column 2
|
Column 3
|
Column 4
|
| Paragraph
13(1)(a)
|
$110,000
|
$111,870
|
AWE
|
| Paragraph
13(1)(b)
|
$156,000
|
$159,470
|
AWE
|
| Paragraph
13(1)(c)
|
$369,350
|
$375,630
|
AWE
|
| Paragraph
61 (b)
|
$6,917
|
$7,035
|
CPI
|
| Sub-regulation
64(1)
|
$6,917
|
$7,035
|
CPI
|
| Sub-regulation
88(1)
|
$21,300
|
$21660
|
AWE
|
| Sub-regulation
88(2)
|
$21,3000
|
$21,660
|
AWE
|
| Sub-regulation
95(1)
|
$13,400
|
$13,630
|
AWE
|
| Sub-regulation
95(2)
|
$13,400
|
$13,630
|
AWE
|
Regulation 43 Transitional - effect of student income test on living allowance
Sub-regulation 43.1 provides that, for the purposes of regulation 82, the relevant income period of a student who is entitled to AUSTUDY during the period 1 January 1995 to 30 June 1995 and has received AUSTUDY during the period 1 July 1994 to 31 December 1994 is the number of days the student is entitled to AUSTUDY in the period 1 January 1995 to 30 June 1995. This is a consequential amendment as a result of the change made by Regulation 22 of these regulations.