Statutory Rules 1996
No. 245 1
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AUSTUDY Regulations 2(Amendment)
I, The Governor-General of the Commonwealth of Australia, acting
with the advice of the Federal Executive Council, make the following
Regulations under the Student and Youth Assistance Act 1973.
Dated
6 November 1996.
WILLIAM
DEANE
Governor-General
By His Excellency’s Command,
AMANDA
VANSTONE
Minister for Employment,
Education, Training and Youth Affairs
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1. Amendment
1.1 The AUSTUDY
Regulations are amended as set out in these Regulations.
[NOTE: These Regulations commence on gazettal: see Acts
Interpretation Act 1901, s. 48.]
2. Application of amendments
2.1 The amendments
of the AUSTUDY Regulations made by these Regulations apply only in relation to
applications for AUSTUDY for a period starting on or after 1 January 1997.
3. Heading to Division 1B of Part 1 of
Chapter 2
3.1 Omit the heading, substitute:
“Division 1B—Actual means test”.
4. Regulation 12G (Circumstances in which
this Division does not apply)
4.1 Omit the regulation, substitute:
12G Circumstances in which this
Division does not apply | “12G. (1) This
Division does not apply to a student: (a) described in regulation 92; or (b) while the parent or spouse of the student
receives a payment under the Commonwealth scheme known as the Drought Relief
Payments Scheme (‘the DRP Scheme’); or (c) while the parent or spouse of the student
receives a payment under Part 5 or 6 of the Farm Household Support
Act 1992.
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“(2) For the purposes of paragraph
(1) (b), if, in a year of study, a parent or spouse’s entitlement to a
payment under the DRP Scheme ends, the parent or spouse is taken to be
receiving a payment under the Scheme until the end of that year.”. |
5. Heading to Subdivision B of
Division 1B of Part 1 of Chapter 2
5.1 Omit the heading, substitute:
“Subdivision B—Actual means test: designated
parent”.
6. Regulation 12J (To whom does this
Subdivision apply?)
6.1 Omit the regulation, substitute:
12J To whom does this Subdivision apply? | “12J. This Subdivision applies to a student who: (a) has a parent who is a designated parent
within the meaning of regulation 12L; and (b) apart from this Subdivision—would qualify
for:
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7. Regulation 12K (Actual means test:
designated parent)
7.1 Subregulation 12K (1):
Omit the subregulation, substitute:
“12K.(1)The
student (‘the relevant student’) is not entitled to receive living allowance
for a period of eligibility in a year of study, unless the Secretary is
satisfied that, for that period, the actual means of the designated parent
are less than the after tax income of the notional parent.”. |
7.2 Subregulation 12K (2):
Omit all of the words before paragraph (a), substitute:
“(2) For the purposes of subregulation (1), the
notional parent, in relation to a particular relevant student, is a parent
who:”. |
7.3 Paragraph 12K (2) (b):
Omit “designated”, substitute
“relevant”.
8. Regulation 12L (Who is a designated
parent?)
8.1 Paragraphs 12L (1) (c), (d) and
(e):
Omit the paragraphs, substitute:
“(c) derives income from a source outside
Australia and its external territories (other than income described in subparagraph (d) (ii));
or
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(d) for the financial year ending immediately
before the year of study to which the student’s AUSTUDY application relates:
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(e) is a self-employed person (other than a
self-employed person who is wholly or mainly engaged in the carrying on of a
primary production business owned by the person); or
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(f) is a partner in a partnership.”.
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8.2 Subregulation 12L (2):
Omit “paragraph (1) (d):”,
substitute “paragraph (1) (e):”
9. Regulation 12M (What is the after tax
income of a notional parent?)
9.1 Omit all the words after the formula,
substitute:
“where: ‘PI’ means the minimum income of
the notional parent at which, on a notional application of the parental
income test, a student becomes ineligible to receive living allowance; |
‘DC’ means the total amount of any deductions for children
of the notional parent that, under regulation 87, would be applicable; |
‘T’ means the amount of income tax (including Medicare
levy, but before rebates, if any) that would notionally be assessable on (PI + DC); |
‘FP’ means the total amount of any family payments
(at the basic rate) that could be paid under Part 2.17 of the Social
Security Act 1991 in respect of the children of the notional parent who
are aged less than 16 years. |
“Note to regulation 12M 1. The parental income test is set out in
Part 5 of Chapter 4 of these Regulations.”. |
10. Regulation 12N (What are the actual means
of a designated parent?)
10.1 Subregulation 12N (1):
Omit “the total”, substitute “the
amount that equates to total”.
10.2 After subregulation (1), insert:
“(1A) Despite subregulation (1), the actual
means of a designated parent do not include: (a) subject to subregulation (1B),
expenditure or savings derived from income earned from independent employment
by a member of the parent’s family described in paragraph (b) or (d) of
the definition of ‘family’ in subregulation (5); or
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(b) expenditure that is maintenance paid by
the designated parent or his or her spouse for the upkeep of: - (i)
a
child of the parent or spouse if the parent or spouse does not have responsibility
for the day-to-day care, welfare and development of the child; or - (ii)
a
former spouse of the parent or spouse; or
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(c) if the designated parent or his or her
family incurs expenditure in boarding away from home a family member who is a
student who qualifies for boarding allowance under the Commonwealth scheme
known as the Assistance for Isolated Children Scheme—the lesser of:
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(d) if the designated parent or his or her
family incurs expenditure in boarding away from home a family member who is a
secondary student who qualifies for the away-from-home living allowance under
subregulation 77 (1) (which relates to isolated students)—the
lesser of:
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“(1B) For the purposes of paragraph
(1A) (a), the maximum amount of expenditure or savings derived from a
person’s independent employment income that may be excluded from actual means
is an amount equal to: |
(a) if the person lodges an AUSTUDY
application for the year including the period of eligibility—the amount of
the person’s income, within the meaning of regulation 83, for that year,
as determined from the application,
less tax (including Medicare levy, but before rebates, if any) that would
notionally be payable on that income; or
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(b) were the person to lodge an AUSTUDY
application for that year—the lesser of:
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- (i)
the
amount that would be regarded as the person’s income, within the meaning of
regulation 83, for that year, for the purpose of that application, less
tax (including Medicare levy, but before rebates, if any) that would
notionally be payable on that income; and
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“(1C) For the purposes of
paragraph (1A) (d), the secondary student’s after-tax income
compensation is worked out using the formula: where:
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‘AT1’ means the after-tax income of the notional
parent of the secondary student, within the meaning of regulation 12M; ‘AT2’ means that income, as if the student were
receiving the standard living allowance; |
‘N’ means the number of secondary students in the
designated parent’s family who qualify for the away-from-home living
allowance.”. |
10.3 Subregulation 12N (5)
(paragraph (c) of the definition of “family”):
Omit “15 years or less”, substitute
“less than 16 years”.
10.4 Subregulation 12N (5)
Insert the following definition:
“‘independent employment’
means employment engaged in by a person that is not provided by: (a) a member of the person’s family; or (b) a proprietary company, an unlisted public
company, a partnership or trust, in which the person, or a member of his or
her family, has an interest.”.
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11. Heading to Subdivision C of
Division 1B of Part 1 of Chapter 2
11.1 Omit the heading, substitute:
“Subdivision C—Actual means test: designated
spouse”.
12. Regulation 12Q (To whom does this
Subdivision apply?)
12.1 Paragraph 12 Q (a):
Omit the paragraph, substitute:
“(a) has a spouse who is a designated spouse,
within the meaning of regulation 12S; and”.
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13. Regulation 12R (Actual means test:
designated spouse)
13.1 Subregulation 12R (1):
Omit the subregulation, substitute:
“12R.(1)The
student (‘the relevant student’) is not entitled to receive living allowance
for a period of eligibility in a year of study, unless the Secretary is
satisfied that, for that period, the actual means of the designated spouse
are less than the after tax income of the notional spouse.”. |
13.2 Subregulation 12R (2):
Omit all of the words before
paragraph (a), substitute:
“(2) For the purposes of subregulation (1), the
notional spouse, in relation to a particular relevant student, is a spouse
who:”. |
13.3 Paragraph 12R (2) (b):
Omit “designated”, substitute
“relevant”.
14. Regulation 12S (Who is a designated
spouse?)
14.1 Paragraphs 12S (1) (c), (d)
and (e):
Omit the paragraphs, substitute:
“(c) derives income from a source outside
Australia and its external territories (other than income described in
subparagraph (d) (ii)); or
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(d) for the financial year ending immediately
before the year of study to which the student’s AUSTUDY application relates:
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(e) is a self-employed person (other than a
self-employed person who is wholly or mainly engaged in the carrying on of a
primary production business owned by the person); or
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(f) is a partner in a partnership.”.
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14.2 Subregulation 12S (2):
Omit “paragraph (1) (d):”,
substitute “paragraph (1) (e):”
15. Regulation 12T (What is the after tax
income of a notional spouse?)
15.1 Omit all the words after the formula,
substitute:
“where: ‘SI’ means the minimum income of
the notional spouse at which, on a notional application of the spouse income
test, a student becomes ineligible to receive living allowance; |
‘DC’ means the total amount of any deductions for children
of the notional spouse that, under subregulation 94 (2A), would be
applicable; |
‘T’ means the amount of income tax (including Medicare
levy, but before rebates, if any) that would notionally be assessable on (SI + DC); |
‘FP’ means the total amount of any family payments (at the
basic rate) that could be paid under Part 2.17 of the Social Security
Act 1991 in respect of the children of the notional spouse who are aged
less than 16 years. |
“Note to regulation 12T 1. The spouse income test is set out in
Part 6 of Chapter 4 of these Regulations.”. |
16. Regulation 12U (What are the actual means
of a designated spouse?)
16.1 Subregulation 12U (1):
Omit “the total”, substitute “the
amount that equates to total”.
16.2 After subregulation (1), insert:
“(1A) Despite subregulation (1), the actual
means of a designated spouse do not include: (a) subject to subregulation (1B),
expenditure or savings derived from income earned from independent employment
by a member of the spouse’s family described in paragraph (a) or (c) of
the definition of ‘family’ in subregulation (5); or
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(b) expenditure that is maintenance paid by
the designated spouse or the student for the upkeep of: - (i)
a
child of the designated spouse or of the student, if the spouse or student
does not have responsibility for the day-to-day care, welfare and development
of the child; or - (ii)
a
former spouse of the designated spouse or the student; or
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(c) if the designated spouse or his or her
family incurs expenditure in boarding away from home a family member who is a
student who qualifies for boarding allowance under the Commonwealth scheme
known as the Assistance for Isolated Children Scheme—the lesser of:
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(d) if the designated spouse or his or her
family incurs expenditure in boarding away from home a family member who is a
secondary student who qualifies for the away-from-home living allowance under
subregulation 77 (1) (which relates to isolated students)—the
lesser of:
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“(1B) For the purposes of paragraph
(1A) (a), the maximum amount of expenditure or savings derived from a
person’s independent employment income that may be excluded from actual means
is an amount equal to: |
(a) if the person lodges an AUSTUDY
application for the year including the period of eligibility—the amount of
the person’s income, within the meaning of regulation 83, for that year,
as determined from the application,
less tax (including Medicare levy, but before rebates, if any) that would
notionally be payable on that income; or
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(b) were the person to lodge an AUSTUDY
application for that year—the lesser of:
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- (i)
the
amount that would be regarded as the person’s income, within the meaning of
regulation 83, for that year, for the purpose of that application, less
tax (including Medicare levy, but before rebates, if any) that would
notionally be payable on that income; and
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“(1C) For the purposes of
paragraph (1A) (d), the secondary student’s after-tax income
compensation is worked out using the formula: |
where: ‘AT1’ means the after-tax income of the notional
parent of the secondary student, within the meaning of regulation 12M; ‘AT2’ means that income, as if the student were
receiving the standard living allowance; ‘N’ means the number of secondary students in the
designated spouse’s family who qualify for the away-from-home living
allowance.”. |
16.3 Subregulation 12U (5)
(paragraph (b) of the definition of “family”):
Omit “15 years or less”, substitute
“less than 16 years”.
16.4 Subregulation 12U (5):
Insert the following definition:
“‘independent employment’
means employment engaged in by a person that is not provided by: (a) a member of the person’s family; or (b) a proprietary company, an unlisted public
company, a partnership or trust, in which the person, or a member of his or
her family, has an interest.”.
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17.New Subdivisions D
and E of Division 1B of Part 1 of Chapter 2
17.1 After regulation 12U, insert the
following new Subdivisions in Division 1B:
“Subdivision D—Actual
means test:designated student with a
spouse
12V Interpretation | “12V. In this Subdivision: ‘notional spouse’ has the meaning given by
subregulation 12X (2). |
12W To whom does this
Subdivision apply? | “12W. This Subdivision applies to a student who: (a) is a designated student within the meaning
of regulation 12Y; and (b) has a spouse (other than a spouse who is a
designated spouse within the meaning of regulation 12S); and (c) apart from this Subdivision, would qualify
for the independent living allowance under regulation 67.
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12X Actual means test:
designated student with a spouse | “12X.(1) The
designated student is not entitled to receive living allowance for a period
of eligibility in a year of study, unless the Secretary is satisfied that,
for that period, the actual means of the spouse of the designated student are
less than the after tax income of the notional spouse. |
“(2) For the purposes of subregulation (1), the
notional spouse, in relation to a particular designated student, is a spouse
who: (a) receives income solely from a salary or
wage source; and
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(b) is the spouse of a student who: - (i)
receives
income solely from a salary and wage source; and - (ii)
qualifies
for living allowance at the same rate as the rate for which, apart from this
Division, the designated student would qualify; and - (iii)
has
children of the same age and number as has the designated student; and
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(c) has children of the same age and number
as has the spouse of the designated student.
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12Y Who is a designated
student? | “12Y.(1) For
the purposes of subregulation 12X (1), a student is a designated
student if he or she: (a) holds, or has held, a permanent visa or
entry permit, within the meaning of the Migration Act 1958, for the
grant of which a criterion or requirement was that the person demonstrate
skills in business; or
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(b) has an interest in:
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(c) derives income from a source outside
Australia and its external territories (other than income described in
subparagraph (d) (ii)); or
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(d) for the financial year ending immediately
before the year of study to which the student’s AUSTUDY application relates:
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(e) is a self-employed person (other than a
self-employed person who is wholly or mainly engaged in the carrying on of a
primary production business owned by the person); or
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(f) is a partner in a partnership.
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“(2) In paragraph (1) (e): ‘self-employed person’ means a person who works for gain
or reward otherwise than under a contract of employment or apprenticeship,
whether or not that person employs one or more other persons. |
12Z What is the after tax
income of the notional spouse? | “12Z. For the purposes of
subregulation 12X (1), the after tax income of the notional spouse
for the period of eligibility is calculated under the following formula: |
where: ‘SSI’ means the minimum income of the notional
spouse in respect of which, on a notional application of the spouse income
test, no living allowance is payable to the student; |
‘DC’ means the total amount of any deductions for children
of the notional spouse that, under subregulation 94 (2A), would be
applicable; |