Commonwealth Numbered Regulations - Explanatory Statements

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AUSTUDY REGULATIONS (AMENDMENT) 1992 NO. 399

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 399

AUSTUDY Regulations (Amendment)

Issued by the authority of the Minister for Higher Education and Employment Services

The Student Assistance Act 1973 (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.

At Attachment A is a list of the policy changes to AUSTUDY made by the Regulations. These implement

       changes announced in the 1992 Budget context; and

       minor corrections and clarifications of the existing AUSTUDY Regulations.

Details of the Regulations are at Attachment B.

The Regulations make amendments to the AUSTUDY Regulations. Part 2 of these Regulations is taken to have commenced on 1 January 1992. Regulation 28 is taken to have commenced on 4 December 1991. Subregulation 10.3 commences on the date of the notification in the Gazette. Part 3 of these Regulations commences on 1 January 1993.

ATTACHMENT A

Policy changes included in the Regulations

The Regulations include the following changes to AUSTUDY announced in the 1992 Budget context:

       AWE increases to the assets test applied to students, their spouses and family (regulation 39)

       CPI increases to the levels of maximum payments (regulations 48 and 50) except for a student with a dependent child (reflecting revised rates in Department of Social Security Family Payments)

       the minimum annual payment increased from $250 to $1000 a year (regulation 51) (students with entitlements under this figure will not be paid an allowance but may be eligible to apply for the AUSTUDY/ABSTUDY Supplement)

       the AUSTUDY age of independence reduced to a student's 24th birthday (regulation 52)

       the amount a student may earn, before AUSTUDY abates, increased from $5,000 to $6,000 per year (regulation 54)

       AWE increases to the spouse and parental income tests (regulations 57 and 61)

       under certain prescribed circumstances benefits will be paid to an AUSTUDY applicant in the absence of, or while awaiting the issue of, a Tax File Number (regulation 66)

Other changes

       interim arrangements for students changing courses (regulation 4)

       access to AUSTUDY for secondary students attending special schools (regulation 9)

       abolition of previous tertiary study rules for secondary students (regulation 11)

       introduction of a concession for secondary students who studied more than 10 years ago (regulation 12)

       broadening of categories of levels of tertiary courses (regulation 13)

       modification of rules on previous study and progress (regulations 14, 15, 16, 45 and 46)

       concessions extended to sole parent pensioner students (regulation 17)

       modification to restriction on payment of special rate of living allowance (regulations 19 and 49)

       changes to inclusions in the parental and spouse income tests (regulations 24, 25 and 55)

       payments of fares allowance to external students (regulations 26 and 27)

       extension of concessional arrangements to parttime students (regulations 34, 35, 36, 37 and 38)

       changes to the treatment of business assets (regulation 40)

       effect of receipt of other Commonwealth allowances and assistance (regulations 41 and 42)

       tightening of provisions relating to unauthorised absences from school for secondary students (regulation 43)

       extension of concessions to certain categories of students undertaking a lighter workload (regulation 47)

       tightening of conditions for away-from-home allowance (regulation 53)

       minor change to concessions to parental income test (regulation 59)

       minor housekeeping arrangements including changes because of changes to other legislation and other State education systems

ATTACHMENT B

1.       Commencement

Regulation 1 provides for a commencement date of 1 January 1992 for Part 2 of the Regulations, except for Regulation 28 which is taken to have commenced on 4 December 1991. Subregulation 10.3 commences on the date of notification in the Gazette. Part 3 of the Regulations commences on 1 January 1993.

2.       Amendment

The Regulations amend the AUSTUDY Regulations.

3.       Regulation 3 (Summary of requirements)

Regulation 3 of the AUSTUDY Regulations refers to a 'secondary student (general or adult)'. However, the adult secondary category has been removed by an earlier amendment. Consequently, a student in secondary education is now simply referred to as a 'secondary' student.

The reference to adult student is omitted from the Regulation.

4.       Regulation 12 (is AUSTUDY paid during a change in course or institution?)

Regulation 12 of the AUSTUDY Regulations provides that AUSTUDY may be payable for a period between discontinuing a course at one institution and starting another, under certain conditions.

The Regulation is modified to apply to students who complete a course and start another under the same conditions.

5.       New Division 1A of Part 1 of Chapter 2

The new Regulations 12A and 12B determine the frequency of AUSTUDY payments and the amount of each payment.

Regulations 12C, 12D and 12E outline the procedures for variation of a student's entitlement during the year.

6.       Regulation 22 (Excluded: (b) students getting certain pensions and allowances)

The Regulation is amended to reflect nomenclature changes following changes to the Social Security Act 1991.

7.       Regulation 24 (Excluded: (d) students in lawful custody)

The marginal note to Regulation 24 of the AUSTUDY Regulations states that a student cannot get AUSTUDY while in prison while the Regulation refers to students in lawful custody.

The amendment clarifies this intention in the marginal note.

8.       Regulation 26 (What is a secondary student?)

Prior to 1992, there were two age-based categories of secondary students with differing progress and away-from-home provisions. These categories were combined into a single group with effect from 1 January 1992 (Regulations 32 and 77 of the AUSTUDY Regulations).

Subregulations 26(2), (3) and (4) of the AUSTUDY Regulations are omitted to reflect the changes already made to Regulations 32 and 77.

9.       Regulation 27 (Where can secondary students study?)

Regulation 27 of the AUSTUDY Regulations sets out where secondary students must study and what is regarded as a secondary school for the purposes of subsection 3(1) of the Student Assistance Act 1973.

The amendment clarifies that AUSTUDY may be payable to students with disabilities undertaking non-primary studies at special schools for people with disabilities.

10.       Regulation 29 (Workload: (a) secondary students attending school)

Regulation 29 of the AUSTUDY Regulations requires that secondary school students undertake full-time study to qualify for AUSTUDY. Subregulations 29(3) and (4) apply penalties to students who have been absent without school approval for more than a prescribed period.

The amendment more clearly defines these penalties and clarifies that periods of suspension from school count as periods of unapproved absence.

11.       Regulation 31 (Progress: (a) secondary students with previous tertiary study)

Under Regulation 31 of the AUSTUDY Regulations previous tertiary study is taken into account when assessing a secondary student's eligibility for AUSTUDY.

The amendment provides that such study will not affect a secondary student's entitlement.

12.       Regulation 32 (Progress: (b) repeating year 12 study)

Subregulation 32(1) of the AUSTUDY Regulations provides that a student may receive AUSTUDY for two attempts at year 12.

The amendment introduces a concession so that previous study at year 12 attempted more than 10 years ago may be disregarded in applying this rule.

13.       Regulation 38 (Levels of tertiary courses)

Regulation 38 of the AUSTUDY Regulations divides tertiary courses into three broad groups; graduate courses (Group A), undergraduate course (Group B) and TAFE courses (Group C).

Regulation 38 is broadened to include a further group containing all associate diploma courses and all two year undergraduate diploma courses. The note to Regulation 38 is omitted as this change makes it unnecessary.

14.       Regulation 41 (Previous study: time spent on a course)

Regulation 41 of the AUSTUDY Regulations determines whether or not AUSTUDY may be paid on the basis of time already spent in full-time study in the course or in courses of the same level.

The amendment provides for certain periods of 'time already spent' in a course to be ignored.

15.       Regulation 46 (Previous study: honours year and Master's qualifying course)

Regulation 46 of the AUSTUDY Regulations reflects a rather specific aspect of previous AUSTUDY policy as applied to honours and Master's students. The relevant policy no longer considers a student's academic progress and is now expressed in Regulation 41.

Regulation 46 is omitted and a new provision inserted to reflect that a student may receive AUSTUDY for an honours year or a Master's qualifying course.

16. Regulation 48 (Progress: concession (b) illness and circumstances beyond control)

Regulation 48 of the AUSTUDY Regulations provides a concession whereby if a student was forced to discontinue a course for reasons beyond his or her control no account should be taken of that course when the student is subsequently assessed for AUSTUDY for another course.

The amendment clarifies the intention that study in a year of the course or the course as a whole should be disregarded.

The concession is also extended to disregard a completed course if the student is precluded for medical reasons from working in the particular profession(s) to which the course was specific.

17.       Regulation 55 (Sole parent pensioner students and students with disabilities: total length of tertiary study)

Under Regulation 55 of the AUSTUDY Regulations special provisions apply to students with disabilities.

The amendment extends these provisions to sole pensioner students. Note 1 has been omitted as Regulation 37, to which it referred was abolished in a previous amendment to the Regulations.

18.       Regulation 62 (How is a student's living allowance worked out?)

Subregulation 62(2) is omitted as it became superfluous with the introduction of the new Division 1A of Part 1 of Chapter 2 of the AUSTUDY Regulations. (regulation 5)

19.       Regulation 63 (Who gets the special rate?)

Under subregulation 63(1) of the AUSTUDY Regulations a higher rate of AUSTUDY allowance known as the special rate is paid to certain prescribed categories of students, chiefly students aged 21 or over proceeding to AUSTUDY following long term receipt of certain Commonwealth pensions or benefits. The amendment extends this to students where the relevant payment was made to a former partner at the married rate on their behalf.

The marginal note is amended to correct the title of this higher rate of allowance.

20.       Regulation 64 (Is there an allowance for a spouse?)

Regulation 64 of the AUSTUDY Regulations sets out the conditions for receiving an allowance for a dependent spouse in addition to living allowance.

The amendment reflects nomenclature changes following changes to the Social Security Act 1991.

21.       Regulation 71 (Independent student: (d) periods in the workforce)

The amendment reflects nomenclature changes following changes to the Social Security Act 1991.

22.       Regulation 77 (who gets the away-from-home allowance?)

Subregulation 77(5) of the AUSTUDY Regulations provides that a secondary student cannot get the away-from-home rate of allowance if the principal home of the student's parents is outside Australia and Christmas Island.

It is amended such that a secondary student cannot get the away-from-home rate if the principal home is outside Australia and the external territories of Australia.

23.       Regulation 83 (what is a student's income?)

The amendment reflects nomenclature changes following changes to the Social Security Act 1991.

24.       Regulation 91 (concession to the parental income test: (c) pensions and allowances)

Regulation 91 of the AUSTUDY Regulations provides a concession to the application of the parental income test where a student's parents are in receipt of certain prescribed payments, such as Job Search/Newstart allowances.

It is amended to include payments under Part C of the Rural Adjustment Scheme.

Regulation 91 is also amended to reflect nomenclature changes following changes to the Social Security Act 1991.

25.       Regulation 97 (Concession to the spouse's income test: (b) pensions and allowances)

Regulation 97 of the AUSTUDY Regulations provides a concession to the application of the income test on a student's spouse where a student's spouse is in receipt of certain prescribed payments, such as Job Search/Newstart allowances.

It is amended to include payments under Part C of the Rural Adjustment Scheme.

Regulation 97 is also amended to reflect nomenclature changes following changes to the Social Security Act 1991.

26.       Regulation 99 (Who can get the fares allowance?)

Regulation 99 of the AUSTUDY Regulations determines who can get fares allowance. Under subparagraph 99(2)(e) the allowance is not payable if the student is studying outside Australia.

It is amended to include study outside an external territory.

Regulation 99 also sets out the categories of students to whom fares allowance may be paid.

It is amended to provide for an additional category of students undertaking external studies programs who are required to travel to the institution for a compulsory residential component of their course.

An additional note to Regulation 99 clarifies that the travel undertaken by the external student must be to the educational institution at which the student is enrolled.

27.       Regulation 100 (What journeys get fares allowance?)

Regulation 100 of the AUSTUDY Regulations prescribes the journeys for which a fares allowance is payable.

The amendment determines the journeys for external students referred to in amending Regulation 26.

28.       Regulation 101 (How much is the fares allowance?)

This amendment increases the level at which fares allowance is paid to students travelling by taxi or private motor vehicle in line with an increase in the level of allowances paid under a determination under the Public Service Act 1922 (No 297 of 1991).

29.       Regulation 108 (Insufficient information or evidence)

Section 12 of the Act provides that regulations can be made dealing with the suspension and termination of assistance.

Regulation 108 of the AUSTUDY Regulations enables the Department to ask for more information or evidence. The sanction is that, if the notice is not complied with, in 14 days, payment will not be made until the information or evidence is provided.

The amendment clarifies the application of Regulation 108 to suspension of continuing payments of assistance.

30.       Regulation 109 (What changes in circumstances must the Department be told about?)

The amendment reflects nomenclature changes following changes to the Social Security Act 1991.

31.       Regulation 111 (Statements about income etc)

The amendment reflects changes following changes to the Social Security Act 1991.

32.       Regulation 113 (Definitions)

The definition of prescribed education scheme has been deleted from Regulation 113 of the AUSTUDY Regulations as the programs to which it referred have been superseded. This results in consequential changes to Group C of Schedule 1 and paragraph 91(1)(c) of the AUSTUDY Regulations.

33.       Schedule 1

Schedule 1 is amended to reflect changes to the names of benefits and allowances and amendments to other legislation referred to in the AUSTUDY Regulations and to include a reference to the New Enterprise Incentive Scheme.

34.       Regulation 7 (When is AUSTUDY payable from?)

Regulations 7, 8, 9, 10 and 11 of the AUSTUDY Regulations prescribe the periods for which AUSTUDY is payable. Currently, these regulations make reference to study on a full-time basis. A significant number of students are now permitted to study on a part-time basis under the concessions offered by Regulations 52, 53 and 55 of the AUSTUDY Regulations.

Regulation 7 of the AUSTUDY Regulations has been amended to clarify its application to such part-time students.

Regulations 8, 9, 10, and 11 are amended similarly. (amending Regulations 35, 36, 37 and 38).

35.       Regulation 8 (AUSTUDY is payable until when?)

Regulation 8 of the AUSTUDY Regulations sets out when AUSTUDY is payable to students finishing or leaving fulltime study in a number of specified circumstances.

The amendment covers the circumstance where a student discontinues full-time studies before the end of a course and this is not during a vacation.

It also reflects part-time students as set out in amending Regulation 34.

36.       Regulation 9 (10 AUSTUDY paid for the long vacation?)

The amendment covers part-time students as set out in amending Regulation 34.

37.       Regulation 10 (Is AUSTUDY paid for vacations during the year?)

The amendment covers part-time students as set out-in amending Regulation 34.

38.       Regulation 11 (Is AUSTUDY paid during illness?)

The amendment covers part-time students as set out in amending Regulation 34.

39.       Regulation 13 (Do assets affect AUSTUDY?)

Eligibility for AUSTUDY is subject to an assets test. Regulation 39 increases the asset test threshold levels, in line with indexation.

It also clarifies the meaning of the word 'family' in subregulation 13(1A) and the concession given by paragraphs 13(1)(c) and (d) of the AUSTUDY Regulations.

40.       Regulation 19 (How are business assets treated?)

Subregulation 19(2) of the AUSTUDY Regulations provides that 50% of a person's interest in the value of a business is disregarded if a person or their spouse is substantially engaged in certain types of business.

Subregulation 19(2) also states that a trust in which the person is a beneficiary and more than 50% of the trust is owned by family members is a type of business that may attract the 50% discount.

The amendment reflects the intention that the discounting provision applies where an individual is engaged in a business which is their whole or main occupation or source of income and that the trust is directly or indirectly controlled by family members.

41.       Regulation 21 (Excluded: (a) students getting other Commonwealth assistance)

Under Regulation 21 of the AUSTUDY Regulations a person who qualifies for certain prescribed forms of Commonwealth assistance cannot also receive AUSTUDY.

The amendment clarifies that the person cannot get AUSTUDY if he or she is actually in receipt of other Commonwealth assistance.

42.       Regulation 22 (Excluded: (b) students getting certain pensions and allowances)

Regulation 22 of the AUSTUDY Regulations provides that, in general, students cannot get AUSTUDY if they qualify for other forms of income support from the Commonwealth.

The amendment clarifies that a person cannot get AUSTUDY if he or she is actually receiving other Commonwealth assistance.

43.       Regulation 29 (Workload: (a) secondary students attending school)

Regulation 29 of the AUSTUDY Regulations requires that school students undertake full-time study to qualify for AUSTUDY. It also sets out the penalty that may be applied to secondary students who take more than a stipulated number of days absence without school approval ie unapproved absences.

The proposed amendment tightens the procedures for schools notifying such absences to the Department and the note to Regulation 29 ensures that schools may not retrospectively vary the status of absence in an unlimited way.

44.       Regulation 30 (Workload: (b) secondary students studying at other institutions or by correspondence)

Regulation 30 of the AUSTUDY Regulations gives the amount of work regarded as the normal amount of full-time work at either year 11 or year 12 level for each of the States and Territories.

The amendment reflects changes made to the education systems in Victoria, South Australia and the Northern Territory.

45.       Regulation 41 (Previous study: time spent on a course)

Regulation 41 of the AUSTUDY Regulations allows that student may be paid AUSTUDY in a year of study in tertiary course of a given level, subject to an assessment of the previous duration of a student's study at that level in the same or other courses.

The amendment clarifies the measurement of previous study.

46.       Regulation 48 (Progress: concession (b) illness and circumstances beyond control)

Subregulation 48(1) of the AUSTUDY Regulations provides that in calculating the duration of a student's study at given level, no account is taken of a course where student withdrew or failed because of illness or circumstances beyond the student's control.

The amendment clarifies that to qualify for the concession (in Regulation 48(1) as amended in amending Regulation 16 in Part 2) the illness or other circumstances became unexpectedly more severe and that it was this unexpected severity which caused the student's failure and the permanent discontinuation of the course.

47.       Regulation 52 (Recognition of students with disabilities and students who are sole parents)

Under regulation 52 of the AUSTUDY Regulations disabled students and students receiving a sole parent pension under the Social Security Act 1991 can undertake a lighter workload over a longer period than generally allowed for AUSTUDY students.

Regulation 52 is modified to extend this concession to include sole parents who receive certain other pension/benefits from the Department of Social Security and to students with intellectual disabilities.

48.       Regulation 61 (What is the maximum living allowance?)

This amendment increases the maximum allowance payable in line with CPI under paragraph 61(b) of the AUSTUDY Regulations and makes an adjustment to paragraph 61(a) in line with changes to allowances paid under the Social Security Act 1991.

49.       Regulation 63 (Who gets the special rate of living allowance?)

Subregulations 63(2) and (3) of the AUSTUDY Regulations set out the circumstances under which a student may continue to receive the higher special rate of living allowance if he or she transfers from one course to another.

The amendment clarifies this to apply where the student enrols in the next course up to 12 months after discontinuation or completion of the first.

50.       Regulation 64 (Is there an allowance for a spouse?)

Regulation 64 of the AUSTUDY Regulations sets out the conditions for receiving and the level of an allowance for a dependent spouse in addition to the living allowance.

The amendment increases the level of allowance, in line with CPI.

51.       Regulation 66 (Is there a minimum rate of allowance?)

The amendment changes the minimum payment to $1000.

52.       Regulation 68 (Independent student: (a) age)

Regulation 68 of the AUSTUDY Regulations states that a student qualifies for the higher, independent rate of allowance if he or she is at least 25 years old or turns 25 during the year of study.

The amendment changes the Regulation such that a student will qualify for the independent rate from the date of their 24th birthday.

53.       Regulation 77 (Who gets the away-from-home rate?)

Regulation 77 of the AUSTUDY Regulations provides for a higher rate of assistance (the away-from-home rate) to be paid where students meet certain criteria which show they must live away from home to study eg because of distance.

The amendment clarifies that the away-from home rate is not payable if a student meets these criteria but in fact continues to live in the family home with a parent or parents.

54.       Regulation 82 (How does a student's income affect living allowance?)

Regulation 82 of the AUSTUDY Regulations sets the period over which the personal income test on a student applies by referring to Regulations 7 and 8.

The amendment more clearly defines the period.

It also increases the level of income that may be received before affecting a student's entitlement to AUSTUDY to $6000.

55.       Regulation 86 (What is the parental income?)

Regulation 86 of the AUSTUDY Regulations defines parental income for AUSTUDY purposes.

The amendment ensures that where one parent's income is less than zero the negative value will not offset the remaining parent's income.

It also provides a concession to the calculation of parental income for persons receiving a payment under the Commonwealth scheme known as the TCF Special Allowance. Regulation 86 also provides that parental income includes maintenance paid by a former spouse.

The amendment makes it clear that maintenance paid to a third party, such as a school, is also taken into account.

56.       Regulation 87 (What are deductions for children?)

This amendment reflects the changes made to Regulation 68 of the AUSTUDY Regulations whereby students will qualify for the independent rate from their 24th birthday.

57.       Regulation 88 (How does parental income affect living allowance?)

The point at which a student's allowance begins to reduce because of his or her parental income in the previous financial year is increased to $21,150.

Regulation 88 of the AUSTUDY Regulations is also amended to take into account the concessions contained in Regulations 90, 91 and 92 of the AUSTUDY Regulations.

58.       Regulation 90 (Concession to the parental income test; (b) fall in income

Regulation 90 of the AUSTUDY Regulations provides a concession to the application of the parental income test where there has been a substantial fall in parental income.

The amendment clarifies that the concession applies from the date of drop in income or the date AUSTUDY commences, whichever is the later.

59.       Regulation 91 (Concession to the parental income test: (c) pensions and allowances)

Regulation 91 of the AUSTUDY Regulations is amended to take into account the change made to Regulation 86 of the AUSTUDY Regulations concerning the TCF Special Allowance.

60.       Regulation 94 (What is spouse's income?)

Regulation 94 of the AUSTUDY Regulations is amended to include the changes to the definitions of a spouse's income included in the changes to Regulation 86 of the AUSTUDY Regulations.

It is also amended to provide a concession to the calculation of spouse income for a person receiving a payment under the Commonwealth scheme known as the TCF Special Allowance (to parallel the amendment to the concession to the parental income test in Regulation 86 of the AUSTUDY Regulations).

61.       Regulation 95 (How does the spouse's income affect living allowance?)

The level at which a student's allowance is affected by the spouse's income is increased to $13,300.

62.       Regulation 96 (Concession to the spouse's income test: (a) fall in income)

Regulation 96 of the AUSTUDY Regulations provides a concession to the application of the spouse income test where there has been a substantial fall in spouse income.

The amendment clarifies that the concession applies from the date of drop in income or the date AUSTUDY commences, whichever is the later.

63.       Regulation 98 (Can students with pensions get AUSTUDY?)

Regulation 98 of the AUSTUDY Regulations allows that students in receipt of certain payments may receive an education supplement' of $30 per week.

To avoid confusion with the AUSTUDY/ABSTUDY Supplement the amendment renames this payment the 'pensioner education supplement'.

64.       Regulation 99 (Who can get the fares allowance?)

Regulation 99 of the AUSTUDY Regulations sets out the categories of students who can receive a fares allowance. It states that they must be entitled to a living allowance or an education supplement for pensioners under AUSTUDY.

The amendment to the regulation means that a student who chooses to exchange all of their AUSTUDY grant for financial supplement will not be entitled to a fares allowance.

65.       Regulation 109 (What changes in circumstances must the Department be told about?)

Paragraph 109(c) of the AUSTUDY Regulations states that a prescribed event for the purposes of section 48 of the Act has occurred if the number of dependent children of a parent as defined in subregulation 89(1) is reduced. Regulation 89 of the AUSTUDY Regulations was repealed with effect from 1 January 1992.

The new paragraph 109(c) defines the prescribed event in relation to the number of dependent children by reference to Regulation 87 of the AUSTUDY Regulations.

66.       New Regulation 111B

This new Regulation sets out the circumstances whereby a benefit may be paid in the absence of a Tax File Number (TFN) or while awaiting the issue of a TFN.


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