AUSTUDY Regulations (Amendment) (Cth)

Statutory Rules 1995

No. 132 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 8 June 1995.

 BILL HAYDEN

 Governor-General

By His Excellency’s Command,

ROSS FREE

Minister for Schools, Vocational Education and Training

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1.   Commencement

1.1   These Regulations commence on 1 October 1995.

2.   Amendment

2.1   The AUSTUDY Regulations are amended as set out in these Regulations.

3.   New Division 1B of Part 1 of Chapter 2 (Who can get AUSTUDY?)

3.1   After regulation 12E, insert:

“Division 1B—Means test: parent and spouse

“Subdivision A—Preliminary

12F

Application of this Division

“12F. This Division applies only to applications for AUSTUDY for a period starting on or after 1 January 1996.

12G

Circumstances in which this Division does not apply

“12G. This Division does not apply to a student while regulation 92 applies to the student.

“Subdivision B—Actual means test: parents

12H

Interpretation

“12H. In this Subdivision:

‘notional parent’ has the meaning given by subregulation 12K (2).

12J

To whom does this Subdivision apply?

“12J. This Subdivision applies to a student who, apart from this Subdivision, would qualify for:

(a) the away-from-home living allowance under regulation 77; or

(b) the standard living allowance under regulation 61.

12K

Actual means test: parent

“12K. (1) A student (‘the designated student’) who has a parent that is a designated parent is not entitled to receive living allowance in respect of 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, or equal to, the after tax income of a notional parent.

“(2) For the purposes of subregulation (1), a notional parent, in relation to any particular designated student, is a parent who:

(a) receives income solely from a salary or wage source; and

(b) is the parent of a student who qualifies for living allowance at the same rate as the rate for which, apart from this Division, the designated student would qualify; and

(c) has children of the same number and age as has the designated parent.

Note to regulation 12K

1“Parent” is defined in subregulation 85 (2).

12L

Who is a designated parent?

“12L. (1) For the purposes of subregulation 12K (1), a parent is a designated parent 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

(b) has an interest in:

• (i)

  an asset located outside Australia (and its external territories); or

• (ii)

  a proprietary company or an unlisted public company; or

• (iii)

  a trust; or

(c) derives income from a source outside Australia (and its external territories); or

(d) is a self-employed person (except a primary producer to whom subregulation 19 (2) applies); or

(e) is a partner in a partnership.

“(2) In paragraph (1) (d):

‘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.

12M

What is the after tax income of a notional parent?

“12M. For the purposes of subregulation 12K (1), the after tax income of a notional parent for the period of eligibility is calculated under the following formula:

where:

‘PI’ means the maximum income of the notional parent in respect of which, on a notional application of the parental income test, a student’s eligibility to receive living allowance for the period would be an annual rate of $1000;

‘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 (before rebates, if any) that would notionally be assessable on (PI + DC);

‘FP’ means the total amount of any family payments (at the maximum rate) that could be paid under Part 2.17 of the Social Security Act 1991 in respect of the children of the notional parent.

Note to regulation 12M

1 The parental income test is set out in Part 5 of Chapter 4 of these Regulations.

12N

What are the actual means of a designated parent?

“12N. (1) For the purposes of subregulation 12K (1), the actual means of a designated parent for the period of eligibility are taken to be the total expenditure and savings made in that period by the parent and his or her family.

“(2) If the Secretary reasonably believes that the total amount expended in a particular transaction does not represent a fair market price for the transaction, the Secretary must impute a value to the transaction, for the purpose of this regulation, that he or she considers to be the fair market price.

“(3) If the Secretary reasonably believes that a transaction engaged in by a person, other than the parent or a member of his or her family, is a transaction engaged in for the benefit of the parent or a member of his or her family, the Secretary must impute a value to the transaction, for the purpose of this regulation, that the Secretary considers to be the fair market value, as if the parent or member of his or her family had expended the amount.

“(4) An amount of expenditure or savings is taken to be expended or saved, as the case may be, in a particular period if:

(a) the expenditure or the savings occurred in that period; or

(b) the Secretary reasonably believes that the expenditure or savings should be taken to have occurred in that period.

“(5) In this regulation:

‘family’, in relation to a parent, means only the following persons:

(a) the parent’s spouse (if any), being a person:

• (i)

  to whom the parent is married and from whom the parent is not separated; or

• (ii)

  with whom the parent lives in a de facto relationship;

(b) the student;

(c) a person aged 15 years or less who:

• (i)

  is a natural or adopted child of the parent; or

• (ii)

  is wholly or substantially dependent on the parent;

(d) a person of the kind described in subparagraph (c) (i) or (ii) aged 16 years or more who:

• (i) 

  is undertaking full-time study; and

• (ii)

  is not taken to be independent under regulation 67; and

• (iii)

  is not in the guardianship, care or custody of a court, Minister or Department; and

• (iv)

  is not the subject of a current direction of a court, Minister or Department placing him or her in the guardianship, care or custody of someone who is not the person’s natural or adoptive parent.

“Subdivision C—Actual means test: spouse

12P

Interpretation

“12P. In this Subdivision:

‘notional spouse’ has the meaning given by subregulation 12R (2).

12Q

To whom does this Division apply?

“12Q. This Subdivision applies to a student who:

(a) has a spouse; and

(b) apart from this Subdivision, would qualify for the independent living allowance under regulation 67.

Note to regulation 12Q

1“Spouse” is defined in subregulation 93 (2).

12R

Actual means test: spouse

“12R. (1) A student (‘the designated student’), whose spouse is a designated spouse, is not entitled to receive living allowance in respect of 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, or equal to, the after tax income of a notional spouse.

“(2) For the purposes of subregulation (1), a notional spouse, in relation to any particular designated student, is a spouse who:

(a) receives income solely from a salary or wage source; and

(b) is the spouse of a student who qualifies for living allowance at the same rate as the rate for which, apart from this Division, the designated student would qualify; and

(c) has children of the same number and age as has the designated spouse.

Note to regulation 12R

1“Spouse” is defined in subregulation 93 (2).

12S

Who is a designated spouse?

“12S. (1) For the purposes of subregulation 12R (1), a spouse is a designated spouse 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

(b) has an interest in:

• (i)

  an asset located outside Australia (and its external territories); or

• (ii)

  a proprietary company or an unlisted public company; or

• (iii)

  a trust; or

(c) derives income from a source outside Australia (and its external territories); or

(d) is a self-employed person (except a primary producer to whom subregulation 19 (2) applies); or

(e) is a partner in a partnership.

“(2) In paragraph (1) (d):

‘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.

12T

What is the after tax income of a notional spouse?

“12T. For the purposes of subregulation 12R (1), the after tax income of a notional spouse for the period of eligibility is calculated under the following formula:

where:

‘SI’ means the maximum income of the notional spouse in respect of which, on a notional application of the spouse income test, a student’s eligibility to receive living allowance for the period would be an annual rate of $1000;

‘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 (before rebates, if any) that would notionally be assessable on (SI + DC);

‘FP’ means the total amount of any family payments (at the maximum rate) that could be paid under Part 2.17 of the Social Security Act 1991 in respect of the children of the notional spouse.

Note to regulation 12T

1 The spouse income test is set out in Part 6 of Chapter 4 of these Regulations.

12U

What are the actual means of a designated spouse?

“12U. (1) For the purposes of subregulation 12R (1), the actual means of a designated spouse for the period of eligibility are taken to be the total expenditure and savings made in that period by the spouse and his or her family.

“(2) If the Secretary reasonably believes that the total amount expended in respect of a particular transaction does not represent a fair market price for the transaction, the Secretary must impute a value to the transaction, for the purposes of this regulation, that he or she considers to be the fair market price.

“(3) If the Secretary reasonably believes that a transaction engaged in by a person, other than the spouse or a member of his or her family, is a transaction engaged in for the benefit of the spouse or a member of his or her family, the Secretary must impute a value to the transaction, for the purpose of this regulation, that the Secretary considers to be the fair market value, as if the spouse or member of his or her family had expended the amount.

“(4) An amount of expenditure or savings is taken to be expended or saved, as the case may be, in a particular period if:

(a) the expenditure or savings occurred in that period; or

(b) the Secretary reasonably believes that the expenditure or savings should be taken to have occurred in that period.

“(5) In this regulation:

‘family’, in relation to a spouse, means only the following persons:

(a) the student;

(b) a person aged 15 years or less who:

• (i)

  is a natural or adopted child of the spouse; or

• (ii)

  is wholly or substantially dependent on the spouse;

(c) a person of the kind described in subparagraph (b) (i) or (ii) aged 16 years or more who:

• (i) 

  is undertaking full-time study; and

• (ii)

  is not taken to be independent under regulation 67; and

• (iii)

  is not in the guardianship, care or custody of a court, Minister or Department; and

• (iv)

  is not the subject of a current direction of a court, Minister or Department placing him or her in the guardianship, care or custody of someone who is not the person’s natural or adoptive parent.”.

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

4.1   Subregulation 109 (1):

After paragraph (c), insert:

“or (ca) a designated parent becomes aware that his or her actual means, within the meaning of regulation 12N, are substantially more than his or her actual means at the time:

• (i)

  that the AUSTUDY application form was lodged; or

• (ii)

  that his or her actual means were last notified to the Department under this regulation; or

(cb) a designated spouse becomes aware that his or her actual means, within the meaning of regulation 12U, are substantially more than his or her actual means at the time:

• (i)

  that the AUSTUDY application form was lodged; or

• (ii)

  that his or her actual means were last notified to the Department under this regulation; or

(cc) a parent becomes a designated parent within the meaning of regulation 12L; or

(cd) a spouse becomes a designated spouse within the meaning of regulation 12S; or”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 15 June 1995.

2. Statutory Rules 1990 No. 443 as amended by 1991 No. 480; 1992 Nos. 24 and 399; 1993 No. 367; 1994 Nos. 13, 91 and 409.