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AUSTUDY REGULATIONS (AMENDMENT) 1996 NO. 275
EXPLANATORY STATEMENTSTATUTORY RULES 1996 No. 275
Issued by the Authority of the Minister for Employment Education Training and Youth Affairs
Student and Youth Assistance Act 1973
AUSTUDY Regulations (Amendment)
The Student and Youth Assistance Act 1973 (the Act) provides the legislative authority for the AUSTUDY scheme- Section 56 of the Act provides that the Governor-General may make regulations for the purposes of the Act.
OUTLINE OF REGULATIONS
The amendments to the AUSTUDY Regulations made by these regulations:
* provide the 1997 rates of living allowance and as" test thresholds, in accordance with the method set out in section 12ZZA of the Student and Youth Assistance Act 1973, The amendments also provide the rent assistance and fares allowance for travel by motor vehicle rates and the loan fringe benefit interest rates. (used to calculate the value of a loan fringe benefit for the purposes of the parental and spouse income tests) for 1997 (regulations 12, 14 and 15 and subregulation 9.2);
* increase the drought recovery period from 6 months to 1 year in line with the Government's recent announcement. Farm assets are exempted from the assets test while a farm is in an exceptional circumstances drought affected area and during the recovery period (regulation 5);
* clarify:
- that AUSTUDY stops at the end of semester one for tertiary students doing semester based subjects and who, during semester one, have studied at the level of their current course for more than the minimum time for the course plus 1/2 a year (regulation 4); and
- that a student is eligible to get AUSTUDY in a semester if the student is doing semester based subjects and has not, at the beginning of the semester, studied at the level of their current course for more than the minimum time for the course plus 1/2 a year (regulation 8);
* include Parenting Allowance in the fist of payments the receipt of which prevents a student from getting AUSTUDY (regulation 6);
* bring the AUSTUDY Regulations up-to-date with changes to educational nomenclature by including associate degree courses in the types of courses for which AUSTUDY is payable (regulation 7);
* provide that the parental income test is not applied to a student who has a parent who is getting AUSTUDY and another parent who is getting benefit Parenting Allowance (regulation 11);
* bring the AUSTUDY Regulations into line with Social Security changes by deleting references to Job Search Allowance which has been amalgamated with Newstart Allowance (regulations 6 and 16) and to provide that recipients of the Widow Allowance are eligible to get the Pensioner Education Supplement (regulation 13); and
* correct a number of drafting errors (regulation 10 and subregulation 9.1).
COMMENCEMENT
Regulation 1 provides that regulation 5 (the extension of the drought recovery period from six months to one year) is taken to have commenced on 4 November 1996. As this change benefits clients, its retrospective commencement does not contravene subsection 48(2) of the Acts Interpretation Act 1901.
The note to regulation 1 advises that the remaining regulations commenced on gazettal in accordance with section 48 of the Acts Interpretation Act 1901.
APPLICATION
Regulation 3 provide that the amendments made by regulation 12, 14 and 15 and subregulation 9.2 of these regulations apply to applications for AUSTUDY in 1997 and later years. The remaining amendment apply immediately they commence.
The Attachment contains more details about the amendments.
ATTACHMENT A
DETAILS OF THE AUSTUDY REGULATIONS (AMENDMENT)
Regulation 1 Commencement
Subregulation 1.1 provides that regulation 5 of these regulations (the extension of the drought recovery period from six months to one year) is taken to have commenced on 4 November 1996. As this change benefits clients, its retrospective commencement does not contravene subsection 48(2) of the Acts Interpretation Act 1901.
The Note to regulation 1 advises that the remainder of these regulations commenced on gazettal in accordance with subsection 48(1) of the Acts Interpretation Act 1901.
Regulation 2 Amendment
Subregulation 2.1 provides that the AUSTUDY Regulations are amended as set out in these regulations.
Regulation 3 Application
Subregulation 3.1 provides that the amendments made by regulations 12, 14 and 15 and subregulation 9.2 of these regulations apply to applications for AUSTUDY in 1997 and later years.
Regulation 4 Regulation 8 AUSTUDY is payable until when?
Regulation 8 Regulation 41 Previous study: time spent on a course
Background
Regulation 8 provides, unless the regulations provide otherwise, when students in specified circumstances can be paid AUSTUDY to in the year of study.
Regulation 41 provides that a student is eligible to get AUSTUDY in a year of study for a tertiary course it on the "relevant date" the student has not exceeded the minimum time for the course plus either half a year (if the course consists of semester based subjects) or a full year (if the course consists of year long subjects). "Relevant date is defined in subregulation 41(3) as either the start of a semester, the start of the academic year or the day on which a specified change in enrolment occurs.
Regulation 41, which arguably provides differently to regulation 8, has been interpreted by Appeals Tribunals so that a student who is eligible to get AUSTUDY on a relevant day can get AUSTUDY until 31 December in the year. The intention where a student exceeds the minimum time for his or her course plus 1/2 a you during semester one is that the student remains eligible until the end of the first semester in the year. However, neither regulation 8 nor 41 provide for this arrangement.
Amendments made by these regulations
Subregulation 4.1 inserts new paragraph 8(eb) to provide that AUSTUDY is payable to a student who exceeds the minimum time for his or her course: plus 1/2 a year in semester one until the end of the last day of the first semester in the year of study.
Subregulation 8.1 inserts into subregulation 41(1) "or semester, (as the case requires)" to provide that a student can Set AUSTUDY in a year or semester as appropriate if, at the relevant date, the student has studied at the level of their current course for less than the minimum time for the course plus 1/2 a year.
Commencement and Application
The amendments commenced on gazettal and apply immediately.
Regulation 5 Regulation 18A What is excluded from assets? (c) farm assets in an "exceptional circumstances drought affected area"
Background
Subregulation 18A(1) provides that the farm assets of a person flying in an exceptional circumstances drought affected area are not included m the persons assets until the end of the year in which the "drought recovery period" ends. Subregulation 18A(2) provides that the "drought recovery period" is a period of six months after a Rural Adjustment Scheme Authority decides an area is no longer an exceptional circumstances drought affected area.
The Government recently announced that the drought recovery period would be Increased from six months to one year.
Amendment made by these regulations
Subregulation 5.1 amends the definition of "drought recovery period" in subregulation 19A(2) to extend it from six months to one year.
Commencement and application
This amendment is taken to have commenced on 4 November 1996 and applies immediately.
Regulation 6 Regulation 22 Excluded: (b) students getting certain pensions and allowances
Background
AUSTUDY is generally not available to a person while he or she is receiving another income support payment Subregulation 22(2) currently provides that a person cannot get AUSTUDY for a period in a year before the start of a course he or she intends to undertake if the person was getting Job Search Allowance, Newstart Allowance, Sickness Allowance, Special Benefit, Partner Allowance or Youth Training Allowance for that period. Parenting Allowance, Which was introduced by the Department of Social Security on 1 July 1995, is to be added to this list.
Job Search Allowance and Newstart Allowance were merged on 20 September 1996. The new allowance is known as Newstart Allowance. References to Job Search Allowance in the AUSTUDY Regulations are now redundant.
Amendments made by these regulations
Subregulation 6.1 omits paragraph 22(2)(a) and substitutes a new paragraph to:
* remove a reference to the Job Search Allowance (the other references are removed by regulation 16); and
* provide that a person cannot 99 AUSTUDY for a period in a year before the start of a course he or she intends to undertake if the person was getting Parenting Allowance in that period.
Commencement and application
The amendments commenced on gazettal and apply immediately.
Regulation 7 Regulation 38 Levels of tertiary courses
Background
Regulation 38 groups tertiary courses into four levels for AUSTUDY purposes; Group A (graduate courses), Group B (undergraduate courses, except Group C), Group C (associate diplomas and 2 yew undergraduate diplomas) and Group D (TAFE courses, except Group C). Under the progress rules of Division 4 of the Regulations, a student can get AUSTUDY for a course of a type identified in each of the four groups.
A number of tertiary institutions offer tertiary courses of a new type called associate degree. Under the national guidelines on course classification and nomenclature, the criteria for the award of an associate degree are equivalent to the criteria for the existing award of associate diploma, a Group C course. AUSTUDY is payable for students studying associate degrees. however, the regulations do not provide for this.
Amendments made by these regulations
Subregulation 7.1 amends regulation 38 to provide that associate degree courses are tertiary courses for the purposes of paying AUSTUDY by:
* Omitting "associate diplomas" from paragraph 38(1)(c) and substituting "associate degrees, associate diplomas"; and
* Omitting paragraph 38(5)(a) and substituting:
(a) an associate degree course,;
(ab) an associate diploma course.
Commencement and application
The amendments commenced on gazettal and apply immediately.
Regulation 9 Regulation 61 What in the maximum living allowance?
Background
Regulation 61 provides the maximum living allowances available to students. These amounts are indexed annually in accordance with section 12ZZA of the Student and Youth Assistance Act 1973.
Paragraph 61(1)(a) provides the rate payable to a student (except a student to whom paragraph (ab) applies) who has a dependent child and has no spouse. Paragraph 61(1)(ab) was omitted by Statutory Rules 1996 No. 246.
Amendments made by these regulations
Subregulation 9.1 amends paragraph 61(1)(a) by omitting the words "(except a student to whom paragraph (ab) applies)".
Subregulation 9.2 amends the rates of living allowance provided in paragraph 61(1)(c) by inserting the amounts to apply in 1997 as follows.
| Category
|
Under 18 years(a)
|
18 years and over(a)
|
Special rate(a)
|
| Standard
|
$3,780
($3,666)
|
$4,546
($4,409)
|
$5,577
($5,409)
|
| Independent
|
$6,240
($6,052)
|
$6,898
($6,691)
|
$8,381
($8,129)
|
| Away-from-home
|
$6,240
($6,052)
|
$6,898
($6,691)
|
$8,381
($8,129)
|
(a) The amounts in brackets are the rates of living allowance for 1996.
Commencement and application
The amendments commenced on gazettal. The amendment made by subregulation 9.1 applies immediately. The amendment made by subregulation 9.2 applies to applications for AUSTUDY in 1997 and later years.
Regulation 10 Regulation 80 Isolated student: (c) special courses of study
Background
Paragraphs 80(1)(a), (b) and (f) were omitted by regulation 34 of Statutory Rules 1993 No. 367. However, the expression "; or" was not omitted where it occurs at the end of paragraph 80(1)(e).
Amendment made by these regulations
Subregulation 10.1 omits "authority; or" after paragraph 80(1)(e) and substitutes "authority.".
Commencement and application
The amendment commenced on gazettal and applies immediately.
Regulation 11 Regulation 91 Concession to the parental income test: (c) pensions and allowances
Background
Part 5 of Chapter 4 of the AUSTUDY Regulations provides for the parental income test. Regulation 91 provides that the parental income test is not applied for a period while a student's parent gets certain specified payments.
Statutory Rules 1996 No. 246 (SR 246) "remade" regulations contained in Statutory Rules 1995 No. 393 which was disallowed by the Senate on 10 September 1996. The Senate subsequently rescinded its disallowance motion on 9 October 1996 enabling the regulations to be remade.
Subregulation 14.1 of SR 246 omitted paragraph 91(1)(d) and substituted a new paragraph to provide that the parental income test is not applied while a student's parent gets AUSTUDY or ABSTUDY and:
* also gets an additional allowance for a spouse under regulation 64, or under ABSTUDY, or
* the spouse of the parent gets Parenting Allowance under Chapter 2 of the Social Security Act 1991.
The reference to Parenting Allowance should be a reference to benefit Parenting Allowance.
Amendment made by these regulations
Subregulation 11.1 omits "parenting allowance" from paragraph 91(1)(d) and substitutes "benefit parenting allowance".
Commencement and application
The amendment commenced on gazettal and applies immediately.
Regulation 12 Regulation 101 How much is the fares allowance?
Background
Regulation 101 provides the amount of fares allowance available to students. Subregulation 101(4) provides that, if public transport is not available for part of a journey, the fares allowance is:
* 58.8 cents per kilometre for travel by taxi; and
* in any other case either 48.1, 54.5, 56.2 or 58.8 cents per kilometre depending on the engine capacity of the motor vehicle.
These amounts are consistent with the rates determined by the Department of Industrial Relations.
Amendments made by these regulations
These regulations:
* omit 58.8 cents per kilometre from paragraph 101(4)(a) and substitute 63 cents per kilometre, and
* omit the table from paragraph 101(4)(b) and substitute:
| Engine (except rotary engine) capacity of motor vehicle (cubic centimetres)
|
Engine capacity (rotary engine) (cubic centimetres)
|
New rate for each kilometre (cents)
|
| 1,600
or less
|
1000
or less
|
47.0
|
| 1,601-2600
|
1001-1500
|
53.1
|
| More
than 2,600
|
More
than, 1,500
|
53.1
|
Commencement and application
The amendments commenced on gazettal and apply to applications for AUSTUDY in 1997 and later years.
Regulation 13 Schedule 1 - Pensions and Allowances
Background
Receipt of certain income support payments excludes a person from, getting AUSTUDY and receipt of certain other payments only enables a person to Set a Pensioner Education Supplement (PES).
Schedule 1 to the Regulations identifies those Commonwealth payments that affect AUSTUDY eligibility. Group B in the Schedule lists the payment a person may receive and still be eligible to receive Pensioner Education Supplement (PES) under regulation 98.
On 1 January 1995, the Department of Social Security introduced Widow Allowance to provide financial assistance for women who have become widowed, divorced or separated after turning 50 years of age and who have no recent workforce experience. It has been decided that recipients of the Widow Allowance are eligible to Set PES.
Amendment made by these regulations
Subregulation 13.1 inserts new item 14 into Group B to provide that recipients of Widow Allowance under Part 2.8A of the Social Security Act 1991 are able to get the AUSTUDY PES.
Commencement and application
The amendment commenced on gazettal and applies immediately.
Regulation 14 Schedule Fringe Benefits
Background
Schedule 6 provides the method of calculating the value of certain employer provided fringe benefits for the purposes of inclusion in the parental and spouse income tens. Part 5 of Schedule 6 provides for valuation of loan benefits based on the difference between the notional (i.e. market) interest rate for the loan and the actual interest rate payable by the recipient of the benefit. Subclause 16(2) contains the table of notional interest rates- The table is amended each year to take account of fluctuations in interest rates.
Amendment made by these regulations
Regulation 14 omits the table in subclause 16(2) of Schedule 6 and substitutes a new table to provide the interest rates that apply for the 1997 student assistance year:
* 8.95% for housing loans; and
* 10.4% for other loans.
Commencement and application
The amendment commenced on gazettal and applies to applications for AUSTUDY in 1997 and later years.
Regulation 15 Rates and thresholds
Background
Living allowances and income and assets test thresholds are indexed annually in accordance with the method set out in section 12ZZA of the Student and Youth Assistance Act 1973. The income test threshold amounts for 1997 were included in Statutory Rule 1996 No. 245.
Amendments made by these regulation
The amendments made by subregulation 15.1 and contained in Schedule 1:
* omit $116,950, $166,650 and $393,750 from paragraphs 13(1)(a), (b) and (c) respectively and substitute $120,580, $171,820 and $405,960 respectively;
* omit $9,642, $7,352 and $5,665 from paragraphs 61(a), (b) and (ba) respectively and substitute $8,910, $7,590 and $5,841 respectively,
* omit $7,352 from subregulation 64(1) and substitute $7,580;
* omit $32.20 from regulation 102E and subregulation 102F(1) respectively and substitute $33.20; and
* omit $36.20 from subregulation 102F(2) and substitute $37.20.
Commencement and application
The amendments commenced on gazettal and apply to applications for AUSTUDY in 1997 and later years.
Subregulation 16 Job Search Allowance
Background
Job Search Allowance and Newstart Allowance were amalgamated with effect from 20 September 1996. The new allowance is known as Newstart Allowance. References in the regulations to Job Search Allowance are redundant.
Amendments made by these regulations
Subregulation 16.1 provides that Schedule 2 omits references to Job Search Allowance from:
* paragraphs 22(3)(a), 22(5)(b), 83(2)(c), 91(1)(a) and 97(1)(b); and
* subparagraphs 63(1)(a)(i), 64(1)(c)(i), 71(1)(e)(i) and 109(1)(b)(vi).
Subregulation 6.1 omits a reference to Job Search Allowance from paragraph 22(2)(a).
Commencement and application
The amendments commenced on gazettal and apply immediately.