AUSTUDY Regulations (Amendment) (Cth)

Statutory Rules 1997No. 373 1

__________________

AUSTUDY Regulations2(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 18 December 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

CHRISTOPHER ELLISON

Minister for Schools, Vocational Education and Training

____________

1.   Commencement

1.1   Regulations 4 to 19 and 21 to 26, subregulation 28.2 and regulation 29 commence on 1 January 1998.

[NOTE:  The remaining provisions of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s 48.]

2.   Amendment

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

3.   Regulation 4 (Citizenship)

3.1   Omit the regulation.

4.   Regulation 12F (Interpretation)

4.1   Subregulation 12F (1):

Insert the following definition:

“‘business’:

• (a)

  includes:

• (i)

  the carrying on of primary production; and

• (ii)

  the provision of professional services; and

• (iii)

  the earning of income as a rentier; but

• (b)

  does not include employment, whether or not the employment is remunerated by salary or wages;”.

4.2   Subregulation 12F (2) (definition of “business”):

Omit the definition.

4.3   Subregulation 12F (2) (definition of “savings”):

Omit the definition, substitute:

“‘savings’ has the meanings given by regulation 12FA;”.

5.   New regulation 12FA

5.1   After regulation 12F, insert:

Meanings of “savings” in Division 1B	“12FA. (1) The savings of a person (the ‘principal’), or a member (a ‘family member’) of his or her family (within the meaning of the Subdivision of this Division applying to the person), include an amount mentioned in any provision of this regulation that applies to the principal or family member.
“(2) The savings of the principal or family member include the amount of his or her share in any profit retained by a company of which he or she is a director or shareholder who has a substantial influence over whether company profit is distributed to:
(a) the principal or a family member; or
(b) another company, or a partnership or trust, in which he or she has an interest.
“(3) However, if the principal’s savings include an amount under subregulation (2), the principal’s savings also include the share of any family member in any profit retained by the company.
“(4) Also, if a family member’s savings include an amount under subregulation (2), the family member’s savings also include the share of the principal and any other family member in any profit retained by the company.
“(5) The savings of the principal or family member include the amount of his or her share in any profit retained by a partnership of which he or she is a member who has a substantial influence over whether partnership profit is distributed to:
(a) the principal or a family member; or
(b) another partnership, or a company or trust, in which he or she has an interest.
“(6) However, if a principal’s savings include an amount under subregulation (5), the principal’s savings also include the share of any family member in any profit retained by the partnership.
“(7) Also, if a family member’s savings include an amount under subregulation (5), the family member’s savings also include the share of the principal and any other family member in any profit retained by the partnership.
“(8)The savings of the principal or family member include the amount of any undistributed trust profit attributable to him or her under a trust or, if no amount is so attributable, the total amount of any undistributed trust profit, if he or she is a trustee or beneficiary of the trust who has:
(a) a power of appointment under the trust; or
(b) a power to rescind or vary a provision of, or the effect of the exercise of a power under, the trust; or
(c) a substantial influence over whether trust profit is distributed to:
(i) the principal or a family member; or
(ii) another trust, or a company or partnership, in which he or she has an interest.
“(9) However, if a principal’s savings include an amount under subregulation (8), the principal’s savings also include the share of any family member in any undistributed trust profit attributable to him or her under the trust.
“(10) Also, if a family member’s savings include an amount under subregulation (8), the family member’s savings also include the share of the principal and any other family member in any undistributed trust profit attributable to him or her under the trust.”.

6.   Regulation 12L (Students not entitled to living allowance)

6.1   Add at the end:

 “(2) However, if the Secretary considers that an amount of expenditure by the designated parent, or a family member, that is reported to the Secretary in relation to the application for AUSTUDY does not represent fair market value:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be the amount of the expenditure by the parent or a family member.

 “(3) Also, if the Secretary considers that expenditure by a person (except the designated parent or a family member) is expenditure for the benefit of the parent or a family member:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be expenditure by the parent or a family member.

 “(4) In this regulation:

‘family’ has the meaning given by subregulation 12N (5).”.

7. Regulation 12M (Actual means:

designated parents)

7.1   Subregulation 12M (4):

Omit the subregulation, substitute:

 “(4) For this regulation, an amount of expenditure or savings is taken to have been spent or saved in the relevant financial year if the Secretary considers that the amount should be taken to have been spent or saved in the year.

 “(5) In this regulation:

‘family’ has the meaning given by subregulation 12N (5).”.

8.   Regulation 12N (What is not the actual means of a designated parent)

8.1   Paragraph 12N (1) (c):

Omit all the words before subparagraph (i), insert:

• “(c)

  if the parent or a family member incurred expenditure in the relevant financial year in boarding away from home a family member who qualified for the boarding allowance under the AIC scheme—the lesser of:”.

8.2   Paragraph 12N (1) (d):

Omit all the words before subparagraph (i), insert:

• “(d)

  if the parent or a family member incurred expenditure in the relevant financial year in boarding away from home a family member who qualified for the away-from-home living allowance under subregulation 77 (1)—the lesser of:”.

8.3   Paragraph 12N (1) (m):

Omit “(b) or”.

8.4   Subregulation 12N (1B) (definition of “T”):

After “rebates,”, insert “without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates

Act 1986,”.

8.5   Subregulations 12N (2), (3) and (4):

Omit the subregulations.

9.   Regulation 12S (Students not entitled to living allowance)

9.1   Add at the end:

 “(2) However, if the Secretary considers that an amount of expenditure by the designated spouse, or a family member, that is reported to the Secretary in relation to the application for AUSTUDY does not represent fair market value:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be the amount of the expenditure by the spouse or a family member.

 “(3) Also, if the Secretary considers that expenditure by a person (except the designated spouse or a family member) is expenditure for the benefit of the spouse or a family member:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be expenditure by the spouse or a family member.

 “(4) In this regulation:

‘family’ has the meaning given by subregulation 12U (5).”.

10. Regulation 12T (Actual means:

designated spouses)

10.1   Subregulation 12T (4):

Omit the subregulation, substitute:

 “(4) For this regulation, an amount of expenditure or savings is taken to have been spent or saved in the relevant financial year if the Secretary considers that the amount should be taken to have been spent or saved in the year.

 “(5) In this regulation:

‘family’ has the meaning given by subregulation 12U (5).”.

11.   Regulation 12U (What is not the actual means of a designated spouse)

11.1   Paragraph 12U (1) (c):

Omit all the words before subparagraph (i), insert:

• “(c)

  if the spouse or a family member incurred expenditure in the relevant financial year in boarding away from home a family member who qualified for the boarding allowance under the AIC scheme—the lesser of:”.

11.2   Paragraph 12U (1) (d):

Omit all the words before subparagraph (i), insert:

• “(d)

  if the spouse or a family member incurred expenditure in the relevant financial year in boarding away from home a family member who qualified for the away-from-home living allowance under subregulation 77 (1)—the lesser of:”.

11.3   Subregulation 12U (1B) (definition of “T”):

After “rebates,”, insert “without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates

Act 1986,”.

11.4   Subregulations 12U (2), (3) and (4):

Omit the subregulations.

12.   Regulation 12Y (Students not entitled to living allowance)

12.1   Add at the end:

 “(2) However, if the Secretary considers that an amount of expenditure by the spouse of a designated student, or a family member of the spouse, that is reported to the Secretary in relation to the application for AUSTUDY does not represent fair market value:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be the amount of the expenditure by the spouse or a family member.

 “(3) Also, if the Secretary considers that expenditure by a person (except the spouse of a designated student or a family member) is expenditure for the benefit of the spouse or a family member:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be expenditure by the spouse or a family member.

 “(4) In this regulation:

‘family’ has the meaning given by subregulation 12ZA (8).”.

13. Regulation 12Z (Actual means:

designated students with a spouse)

13.1   Subregulation 12Z (4):

Omit the subregulation, substitute:

 “(4) For this regulation, an amount of expenditure or savings is taken to have been spent or saved in the relevant financial year if the Secretary considers that the amount should be taken to have been spent or saved in the year.

 “(5) In this regulation:

‘family’ has the meaning given by subregulation 12ZA (8).”.

14.   Regulation 12ZA (What is not the actual means of the spouse of a designated student)

14.1   Paragraph 12ZA (1) (c):

Omit all the words before subparagraph (i), insert:

• “(c)

  if the spouse or a family member incurred expenditure in the last financial year ending before the year of study in boarding away from home a family member who qualified for the boarding allowance under the AIC scheme—the lesser of:”.

14.2   Paragraph 12ZA (1) (d):

Omit all the words before subparagraph (i), insert:

• “(d)

  if the spouse or a family member incurred expenditure in the last financial year ending before the year of study in boarding away from home a family member who qualified for the away-from-home living allowance under subregulation 77 (1)—the lesser of:”.

14.3   Subregulation 12ZA (3) (definition of “DC”):

Omit “‘DC’ the”, substitute “‘DC’ is the”.

14.4   Subregulation 12ZA (3) (definition of “T”):

After “rebates,”, insert “without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates

Act 1986,”.

14.5   Subregulations 12ZA (5), (6) and (7):

Omit the subregulations.

15.   Regulation 12ZD (Students not entitled to living allowance)

15.1   Add at the end:

 “(2) However, if the Secretary considers that an amount of expenditure by the designated student, or a family member, that is reported to the Secretary in relation to the application for AUSTUDY does not represent fair market value:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be the amount of the expenditure by the student or a family member.

 “(3) Also, if the Secretary considers that expenditure by a person (except the designated student or a family member) is expenditure for the benefit of the student or a family member:

• (a)

  the Secretary must impute a fair market value to the expenditure; and

• (b)

  expenditure of that value is taken to be expenditure by the student or a family member.

 “(4) In this regulation:

‘family’ has the meaning given by subregulation 12ZF (8).”.

16. Regulation 12ZE (Actual means:

designated students without a spouse)

16.1   Subregulation 12ZE (4):

Omit the subregulation, substitute:

 “(4) For this regulation, an amount of expenditure or savings is taken to have been spent or saved in the relevant financial year if the Secretary considers that the amount should be taken to have been spent or saved in the year.

 “(5) In this regulation:

‘family’ has the meaning given by subregulation 12ZF (8).”.

17.   Regulation 12ZF (What is not the actual means of a designated student)

17.1   Paragraph 12ZF (1) (c):

Omit all the words before subparagraph (i), insert:

• “(c)

  if the student or a family member incurred expenditure in the last financial year ending before the year of study in boarding away from home a family member who qualified for the boarding allowance under the AIC scheme—the lesser of:”.

17.2   Paragraph 12ZF (1) (d):

Omit all the words before subparagraph (i), insert:

• “(d)

  if the student or a family member incurred expenditure in the last financial year ending before the year of study in boarding away from home a family member who qualified for the away-from-home living allowance under subregulation 77 (1)—the lesser of:”.

17.3   Subregulation 12ZF (3) (definition of “T”):

After “rebates,”, insert “without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates

Act 1986,”.

17.4   Subregulations 12ZF (5), (6) and (7):

Omit the subregulations.

18.   Regulation 13 (Do assets affect AUSTUDY)

18.1   Subregulation 13 (1) (table) (paragraph (a)):

Omit “$120,580”, substitute “$121,000”.

18.2   Subregulation 13 (1) (table) (paragraph (b)):

Omit “$171,820”, substitute “$172,250”.

18.3   Subregulation 13 (1) (table) (paragraph (c)):

Omit “$405,960”, substitute “$407,250”.

19.   Regulation 61 (What is the maximum living allowance)

19.1   Paragraph 61 (1) (a):

Omit “$8,910”, substitute “$8,937”.

19.2   Paragraph 61 (1) (b):

Omit “$7,580”, substitute “$7,603”.

19.3   Paragraph 61 (1) (ba):

Omit “$5,841”, substitute “$5,859”.

19.4   Paragraph 61 (1) (c) (table):

Omit the table, substitute:

“Column 1  Category	Column 2 Under 18 years $	Column 3 18 years and over $	Column 4 Special rate $
Standard	3,791	4,560	5,594
Independent	6,259	6,919	8,406
Away-from-home	6,259	6,919	8,406”.

20.   Regulation 63 (Who gets special rate living allowance)

20.1   Subparagraphs 63 (1) (a) (iii) and (iv):

Omit the subparagraphs, substitute:

• “(ii)

  a benefit listed in Schedule 1; or”.

21.   Regulation 64 (Additional allowance for spouse)

21.1   Omit “$7,580”, substitute “$7,603”.

22.   Regulation 88 (How parental income affects living allowance)

22.1   Subregulation 88 (1):

Omit “$23,350”, substitute “$23,400”.

22.2   Subregulation 88 (2):

Omit “$23,350”, substitute “$23,400”.

23.   Regulation 95 (How spouse’s income affects living allowance)

23.1   Subregulation 95 (1):

Omit “$14,690”, substitute “$14,750”.

23.2   Subregulation 95 (2):

Omit “$14,690”, substitute “$14,750”.

24.   Regulation 101 (How much is the fares allowance)

24.1   Paragraph 101 (4) (b) (table):

Omit the table, substitute:

“Engine capacity of motor vehicle without rotary engine	Engine capacity of motor vehicle with rotary engine	Rate per kilometre
(cubic centimetres)	(cubic centimetres)	(cents)
1600 or less	800 or less	45.4
1,601–2,600	801–1,300	51.6
more than 2,600	more than 1,300	53.5”.

25.   Regulation 102E (How much rent does a student have to pay)

25.1   Omit “$33.20”, substitute “$35.80”.

26.   Regulation 102F (What is the amount of rent assistance)

26.1   Subregulation 102F (1):

Omit “$33.20”, substitute “$35.80”.

26.2   Paragraph 102F (2) (b):

Omit “$37.30”, substitute “$37.40”.

27.   Regulation 109 (What changes in circumstances must Department be informed about)

27.1   Subparagraph 109 (1) (a) (xix):

Omit the subparagraph, substitute:

• “(xix)

  ceases to be an Australian citizen or an Australian resident within the meaning of section 6A of the Act; or”.

[NOTE:  Note 3 to regulation 109 should be omitted.]

28.   Regulation 113 (Definitions)

28.1   Subregulation 113 (1) (Index):

Omit:

“permanent resident of Australia.................................................4 (2)”.

28.2   Subregulation 113 (1) (Index):

Insert in the appropriate alphabetical position determined on a

letter-by-letter basis:

“business.............................................12F (1)”.

28.3   Subregulation 113 (2) (Index):

Omit:

“permanent resident of Australia.................................................4 (2)”.

29.   Schedule 6 (Fringe benefits)

29.1   Subclause 16 (2) (table):

Add at the end of the table:

“starting 1/4/97 6.95% 11.75%”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 18 December 1997.

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; 1995 Nos. 132 and 393 (disallowed by the Senate on 10 September 1996); 1996 Nos. 21, 245, 246, 261 and 275; 1997 Nos. 83, 159, 187, 302, 323 and 341.