AUSTUDY Regulations (Amendment) (Cth)

Statutory Rules 1992

No. 399 1

__________________

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 Assistance Act 1973.

 Dated 9 December 1992.

 BILL HAYDEN

 Governor-General

 By His Excellency’s Command,

P. BALDWIN

Minister of State for Higher Education

and Employment Services

____________

PART 1—PRELIMINARY

1.   Commencement

1.1    Subject to subregulation 1.2, Part 2 of these Regulations, except subregulation 10.3, is taken to have commenced on 1 January 1992.

1.2   Regulation 28 is taken to have commenced on 4 December 1991.

1.3   Part 3 of these Regulations commences on 1 January 1993.

[NOTE: Part 1 and subregulation 10.3 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.

PART 2—AMENDMENTS TAKEN TO HAVE COMMENCED

ON 1 JANUARY 1992

3.   Regulation 3 (Summary of requirements)

3.1 Paragraph 3 (a):

Omit “student (general or adult):”, substitute “student:”.

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

4.1 Subregulation 12 (1):

After “between”, insert “completing or otherwise”.

4.2 Paragraph 12 (1) (c):

After “she”, insert “completed or”.

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

5.1 After regulation 12, insert:

“Division 1A—Payments

12a

Frequency of payments

“12a. AUSTUDY is paid fortnightly.

12b

Amount of each payment

“12b.  (1)  An AUSTUDY payment comprises:

(a) pensioner education supplement, in accordance with regulation 98; or

(b) living allowance,in accordance with subregulation (2) or (3).

“(2) Subject to subregulation (3), the amount of living allowance that a student is entitled to receive in a payment is the amount determined by the following formula:

days entitled x entitlement for the year

number of days of eligibility

where:

‘days entitled’ means the number of days in the previous fortnight that are days for which the student is entitled to get AUSTUDY; and

‘entitlement for the year’ means the amount of living allowance that, on the basis of information available to the Department at the time the payment is made, is the total amount that the student is expected to be entitled to be paid in the calendar year in which the payment is made; and

‘number of days of eligibility’ means:

(a) the number of days in the year; or

(b) if the student is expected to be eligible for living allowance for a period of less than a year—the number of days in the lesser period.

“(3) If, under regulation 12c, a student’s entitlement is determined in respect of a period of less than a year, the amount of living allowance in a payment is the amount determined by the following formula:

days entitled x entitlement for the period

number of days of eligibility

where:

‘days entitled’ means the number of days in the fortnight immediately preceding the payment that are days for which the student is entitled to get AUSTUDY; and

‘entitlement for the period means the amount of living allowance that, on the basis of information available to the Department at the time the payment is made, is the total amount that the student is expected to be entitled to be paid in the period to which the determination applies; and

‘number of days of eligibility’ means the number of days in the period to which the determination applies.

 Note to regulation 12B

• 1

  Fares allowance is determined under regulations 100 and 101.

12c

What happens if a student’s entitlement alters?

“12c.  If information received by the Department under the Act or the Regulations indicates that the expectation of entitlement to living allowance relied on for a determination of entitlement under regulation 12b is not correct, an authorised person may make a further determination under regulation 12b that:

(a) amends the existing determination; or

(b) replaces the existing determination in respect of so much of the student’s period of entitlement as remains in the year.

12d

What happens if AUSTUDY has been underpaid?

“12d.  When the Department determines that an AUSTUDY payment to a person has been a lesser amount than the amount to which the person is entitled, an amount equal to the difference between the amount properly payable and the amount actually paid will be added to a fortnightly AUSTUDY payment as soon as is practicable.

12e

What happens if AUSTUDY has been overpaid?

“12e. If, in a year, the total of the AUSTUDY payments made to a student under determinations of entitlement is greater than the amount that would have been payable if, when the first of the determinations was made:

(a) all information relevant to the student’s entitlement at any time in the year had been known to the Department; and

(b) acting on that information—the determination had correctly decided the student’s entitlement for the whole year;

an amount equal to the difference between the total amount paid and the amount that would have been properly payable under paragraph (b) is taken to be a student assistance overpayment for the purposes of Part 6 of the Act.

 Note to regulation 12C

• 1

  Part 6 of the Student Assistance Act 1973 makes provision in respect of student assistance overpayments, including a power to deduct amounts from future AUSTUDY payments if that is considered appropriate.

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

6.1 Paragraph 22 (2) (c):

Omit “benefit:”, substitute “allowance:”.

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

7.1 After “while”, insert “he or she is”.

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

8.1 Omit subregulations 26 (2), (3) and(4).

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

9.1 Paragraph 27 (1) (a):

After “secondary”, insert “school or special”.

9.2 Add at the end:

“(3) In this regulation ‘special school’ means a school conducted primarily for students having a mental or significant physical disability.”.

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

10.1 Subregulation 29 (3):

Omit “A”, substitute “Subject to subregulation (5), a”.

10.2 Paragraphs 29 (3) (a), (b) and (c):

0mit the paragraphs, substitute:

“(a) the absence is:

(i)

not approved by the school; or

• (ii)

  because the student‘s attendance is suspended by the school; and

(b) the student has already been absent in the school term for other periods of time that:

(i)

were not approved by the school; or

• (ii)

  occurred because of the student’s attendance being suspended by the school; and

(c) those other periods of absence add up to at least the equivalent of 5 normal schooldays.”.

10.3 Subregulations 29 (4) and (5):

Omit the subregulations, substitute:

“(4) Subject to subregulation (5), a student cannot get AUSTUDY:

(a) for the period of 14 days following a day on which AUSTUDY is stopped under subregulation (3); and

(b) if the student has a further absence of the kind referred to in paragraph (3) (a) during the 14 day period or during any additional period arising under this paragraph—for an additional period equivalent to the number of normal schooldays that he or she is so absent.

“(5) If, after subregulations (3) and (4) are applied to a student in a term, the student has further absences during the same term that are absences of the kind described in paragraph (3) (a):

(a) the student cannot get AUSTUDY for the days on which the absences occur; and

(b) subregulation (4) does not apply to the absences.”.

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

11.1 Omit the regulation.

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

12.1 Paragraph 32 (2) (d):

Omit “started.”, substitute “started; or”.

12.2 Subregulation 32 (2):

Add at the end:

“(e) the study was undertaken more than 10  years before the present study:”.

13.   Regulation 38 (Levels of tertiary courses)

13.1 Subregulation 38 (1) and (2):

Omit the subregulations, substitute:

“(1) For the purposes of AUSTUDY, tertiary courses are grouped, according to the level of study, as follows:

(a) Group A—graduate courses;

(b) Group B—undergraduate courses (except Group C courses);

(c) Group C—associate diplomas and 2 year undergraduate diplomas;

(d) Group D—TAFE courses (except Group C courses).”.

13.2 Subregulation 38 (5):

Omit “Group C”, substitute “Group D”.

13.3 Paragraph 38 (5) (b):

Omit “A or B.”, substitute “A, B or C.”.

• Note: 

  Omit the note to regulation 38.

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

14.1 After subregulation 41 (1), insert:

“(1a)   In determining time already spent in full-time study, the following time is not to be counted:

(a) study time during which the student was, or, except for a circumstance referred to in subregulation (1b), would have been, ineligible to get AUSTUDY, or benefit under the Tertiary Education Assistance Scheme, because of the application of present or former rules under these Regulations in respect of academic progress;

(b) study time in a part of a course from which the student withdrew, if the educational institution did not record the withdrawal from the part as a failure.”.

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

15.1 Omit the regulation, substitute:

Previous study: honours year

and Master’s

qualifying course

“46.  (1)   A student can get AUSTUDY for an honours year or for a year of a Master’s qualifying course.

“(2) In this regulation:

‘honours year’ means a year of an undergraduate course at honours level in addition to the years needed to complete the course at pass level.”.

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

16.1 Subregulations 48 (1) and (2):

Omit the subregulations, substitute:

“(1) For the purposes of subregulation 41 (1), no account is taken of:

(a) a failed year of a course if the failure is because of:

• (i)

  the student’s illness; or

• (ii)

  other circumstances beyond the student’s contol; or

(b) a course that is permanently discontinued if it is discontinued because of:

• (i)

  the student’s illness; or

• (ii)

  other circumstances beyond the student’s contol; or

(c) a completed course that, because of the student’s illness, the student is capable of using in none of the trades or professions to which it is appropriate.”.

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

17.1 Add at the end:

“(3) A sole parent pensioner student cannot get AUSTUDY in a year for a tertiary course unless:

(a) when he or she began the course in the year—the student was a sole parent pensioner ; and

(b) the minimum length of the course for a full-time student is more than the sum of:

• (i)

  the length of the period during which he or she was studying at the level2 of that course before becoming a sole parent pensioner; and

• (ii)

  half the length of the period during which he or she was studying at that level while being a sole parent pensioner.”.

• Note: 

  Omit note 1 to regulation 55.

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

18.1 Subregulation 62 (2):

Omit the subregulation.

19.   Regulation 63 (Who gets special rate living allowance?)

19.1 Subregulation 63 (1):

Omit “for the special rate”, substitute “for a special rate of living allowance”.

19.2 Subregulation 63 (1):

Omit paragraph (a), substitute:

“(a)  must, when he or she started the course—have been 21 years old or more and have been getting, for at least 26 weeks out of the immediately preceding 39 weeks:

• (i)

  job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991; or

• (ii)

  a comparable allowance or benefit under Part XIII of the Social Security Act 1947;

 (except a training allowance for a course approved for the AUSTUDY scheme); or”.

“(ab)  must:

• (i)

  when he or she started the course—have been 21 years old or more; and

• (ii)

  when he or she started the course—have been the spouse (at law or de facto) of a person who, for at least 26 weeks out of the last 39 weeks, had been getting a benefit, pension or allowance of a kind referred to in subparagraph (a) (ii), at the rate set for a married person because the person was the spouse of the student; and

• (iii)

  be separated from that spouse; and

• (iv)

  not be the spouse (at law or de facto) of any other person; or”.

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

20.1 Paragraph 64 (1) (c):

Omit the paragraph, substitute:

“(c) the spouse does not get job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991; and”.

20.2 Subparagraph 64 (2) (a) (iii):

Omit the subparagraph, substitute:

“(iii) the spouse does not get job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991; and”.

21.   Regulation 71 (Independent student: (d) periods in the work-force)

21.1 Subparagraph 71 (1) (e):

Omit the paragraph, substitute:

“(e) a recipient of:

• (i)

  job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991; or

• (ii)

  a comparable allowance or benefit under Part XIII of the Social Security Act 1947; or

• (iii)

  a pension or allowance listed in Schedule 1;”.

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

22.1 Subregulation 77 (5):

Omit “and Christmas Island.”, substitute “(including an external Territory).”.

23.   Regulation 83 (What is a student’s income?)

23.1 Paragraph 83 (2) (c):

Omit the paragraph, substitute:

“(c) job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991;3 or”.

 Note:

Omit from note 3 “1947”, substitute “1991”.

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

24.1  Paragraph 91 (1) (a):

Omit the paragraph, substitute:

“(a) job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991;3 or”.

24.2  Paragraph 91 (1) (c):

Omit the paragraph, substitute:

“(c) a payment under Part 7 of the Rural Adjustment Scheme provided for under the States Grants (Rural Adjustment) Act 1976; or”.

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

25.1 Regulation 97:

Omit paragraph (b), substitute:

“(b) job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991;3 or

“(ba) a payment under Part 7 of the Rural Adjustment Scheme provided for under the States Grants (Rural Adjustment) Act 1976; or”.

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

26.1 Subregulation 99 (1):

Omit “only”.

26.2 After subregulation 99 (1), insert:

“(1a)  A student can get a specific fare allowance if he or she:

(a) is a tertiary1 student; and

(b) is enrolled in, and undertaking, a course at an educational institution as an external student; and

(c) gets living allowance or pensioner education supplement under AUSTUDY; and

(d) is required, as a component of the course, to attend at the institution for a period of time.1A”.

26.3 Paragraph 99 (2) (e):

Omit “Australia.”, substitute “Australia and the external Territories, except as described in paragraph (1a) (d).”.

Note: After note 1 to regulation 99, insert:

1a Fare allowance under subregulation 1a would not include travel for study-related practical experience if the practice is not conducted by and at the educational institution.

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

27.1 Add at the end:

“(3) A student to whom subregulation 99 (1a) applies can get a fare allowance:

(a) in respect of each course described in paragraph 99 (1a) (b) that the student is enrolled in and undertaking in a year; and

(b) for one journey to, and return from, the educational institution that conducts the course, for the purpose referred to in paragraph 99 (1a) (d).”.

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

28.1 Paragraph 101 (4) (a):

Omit “52.0 cents”, substitute “57.4 cents”.

28.2 Paragraph 101 (4) (b):

Omit the rates of allowance per kilometre set out in the table, substitute the following rates:

“42.2 cents

51.2 cents

53.9 cents

57.4 cents”

29.   Regulation 108 (Insufficient information or evidence)

29.1 Omit the regulation, substititute:

108

Insufficient information or evidence

“108.   (1)  If the Department has insufficient information or evidence about a student’s eligibility to get a benefit under AUSTUDY, an authorised person1 may request further information or evidence to be given by:

(a) the student; or

(b) if it is believed, on reasonable grounds, that another person has the needed information or evidence—the other person.

“(2) A request must state, in writing, what information or evidence is needed and:

(a) if it is in respect of an application—that the benefit cannot be paid until the information or evidence is supplied; or

(b) if it is in respect of existing payments to the student—that the payments may cease if the information or evidence is not supplied before the end of 14 days after the notice is given.

“(3)If a request is given under paragraph (1) (b), a copy of the request must be given to the student.”.

____________________________________

Note to regulation 108

1 “Authorised person” is defined in subsection 3 (1) and is a Departmental officer who can approve the payment of AUSTUDY.

 Decisions of an authorised person can be appealed to the Student Assistance Review Tribunal.

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

30.1 Subparagraph 109 (1) (b) (vi):

Omit the subparagraph, substitute:

“(vi) starts to get job search allowance, newstart allowance, sickness allowance or special benefit under Chapter 2 of the Social Security Act 1991; or”.

31.   Regulation 111 (Statements about income etc)

31.1 Paragraph 111 (1) (b):

Omit “paragraph 19 (4) (b) of the Social Security Act 1947”, substitute “subsection 1314 (1) of the Social Security Act 1991”.

32.   Regulation 113 (Definitions)

32.1 Subregulation 113 (1):

Omit from the INDEX table:

• “prescribed education scheme .

   . .  . .113 (3)”.

32.2 Subregulation 113 (3):

Omit the subregulation.

33.   Schedule 1

33.1 Omit the Schedule, substitute:

 SCHEDULE 1 Regulations 22, 63, 64, 71,

 87, 89, 91, 98, 109, 113

PENSIONS AND ALLOWANCES

 

Item No.	TYPE OF BENEFIT
GROUP A
1	Age pension	(Part 2.2 of the Social Security Act 1991)
2	Age service pension	(Section 36 of the Veterans’ Entitlements Act 1986)
3	Defence widow’s pension—if the widow has no dependent children	(Section 70 of the Veterans’ Entitlements Act 1986)
4	War widow’s pension—if the widow has no dependent children	(Section 13 of the Veterans’ Entitlements Act 1986)
5	Widowed person allowance	(Part 2.7 of the Social Security Act 1991)
6	Wife pension—if husband gets age pension	(Part 2.4 of the Social Security Act 1991)
7	Partner service pension—if husband gets age service pension	(Section 38 of the Veterans’ Entitlements Act 1986)
GROUP AA
A Commonwealth allowance under the New Enterprise Incentive Scheme (NEIS)
GROUP B
1	Carer pension	(Part 2.5 of the Social Security Act 1991)
2	Carer service pension	(Section 39 of the Veterans’ Entitlements Act 1986)
3	Defence widow’s pension—if the widow has a dependent child	(Section 70 of the Veterans’ Entitlements Act 1986)
4	Disability support pension	Part 2.3 of the Social Security Act 1991)
5	Invalidity service pension

(Section 37 of the Veterans’ Entitlements Act 1986)
6	Sole parent pension	(Part 2.6 of the Social Security Act 1991)
7	Widow B pension	(Part 2.8 of the Social Security Act 1991)

SCHEDULE 1—continued

8	Tuberculosis allowance	(Section 9 of the Tuberculosis Act 1948)
9	War widow’s pension—if the widow has a dependent child	(Section 13 of the Veterans’ Entitlements Act 1986)
10	Wife pension—if husband gets a disability support pension	(Part 2.4 of the Social Security Act 1991)
11	Wife’s service pension—if husband gets an invalidity service pension	(Section 40 of the Veterans’ Entitlements Act 1986)

GROUP C

1

A Commonwealth allowance for full-time vocational training, except:

(a)  AUSTUDY

(b) the Veterans’ Children Education Scheme (under Part 7 of the Veterans’ Entitlements Act 1986);

(c)  a current special educational assistance scheme under the Student Assistance Act 1973:

(i)  the Assistance for Isolated Children Scheme;

(ii)  the ABSTUDY Scheme

(iii)  the Aboriginal Overseas Study Assistance Scheme.

______________

PART 3—REGULATIONS THAT COMMENCE

ON 1 JANUARY 1993

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

34.1 Add at the end:

“(2) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Division 6 of Part 3 in this Chapter.”.

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

35.1 After item (e) in the table, insert:

“(ea)  The student  discontinues full- time study before  the end of the course  and is not a student  referred to in  paragraph (c), (d) or  (e) At the end of the last day of full-time study”.

35.2 Add at the end:

“(2) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Division 6 of Part 3 in this Chapter.”.

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

36.1 Add at the end:

“(2) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Division 6 of Part 3 in this Chapter.”.

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

37.1 Add at the end:

“(2) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Division 6 of Part 3 in this Chapter.”.

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

38.1 Add at the end:

“(5) This regulation applies to a student who is studying part-time as if the student were studying full-time, if the student is eligible to get AUSTUDY under Division 6 of Part 3 in this Chapter.”.

39.   Regulation 13 (Do assets affect AUSTUDY?)

39.1 Subregulation 13 (1):

Omit items (a), (b), (c) and (d) in the table, substitute:

“(a)  Independent—

without spouse2

$109,350 for student

(b)  Independent— with spouse

$155,850 for student and spouse (except spouse to whom regulation 97 applies)

(c)  Away-from- home

$367,150 for student’s family (except parents3 to whom regulation 91 applies)

(d)  Standard

same as for item (c)”.

39.2 Subregulation 13 (1a):

Omit the subregulation, substitute:

“(1a)   In subregulation (1), ‘family’ includes only the following persons:

(a) the student;

(b) the student’s parents;

(c) a person who is aged 16 years or less and  who is:

(i)

a natural or adopted child of a parent of  the student; or

(ii)

wholly or substantially dependent on a  parent of the student;

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

(i)

is undertaking full-time study; and

(ii)

is not independent under regulation    67; and

(iii)

is not a student of the kind described in  paragraph (2) (a) or (b).”.

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

40.1 Subregulation 19 (2):

Omit “substantially”, substitute “wholly or mainly”.

40.2 Paragraph 19 (2) (d):

Omit “owned”, substitute “controlled directly or indirectly”.

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

41.1 Subregulation 21 (1):

Omit “qualifies for”, substitute “gets a”.

41.2 Subregulation 21 (2):

Omit “qualifies for:”, substitute “gets:”.

41.3 Paragraphs 21 (2) (a) and (b):

Before “benefit”, insert “a”.

41.4 Paragraph 21 (2) (c):

Omit “services”, substitute “a service”.

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

42.1 Subregulation 22 (1):

Omit “qualifies for”, substitute “gets “.

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

43.1 Add at the end:

“(6) For the purposes of this regulation, an absence is taken to be not approved by the student’s school if:

(a) the school has reported to the Department that the absence is not approved by the school;2 and

(b) the absence occurred earlier than 2 weeks before the report was made.”.

Note:

After note 1 to regulation 29, add:

2 A subsequent change of mind by the school would not operate to make withheld AUSTUDY payable.

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

44.1 Subregulation 30 (6):

Omit from the table:

“Northern Territory:

South Australian

Matriculation Examination

 5 annual subjects”;

substitute:

“Northern Territory::

South Australian Certificate of Education (NT)

stage 1 (year 11)—

12 annual units;

stage 2 (year 12)—

10 annual units”.

44.2 Subregulation 30 (6):

Omit from the table:

“South Australia:

Matriculation Examination

 5 annual subjects”;

substitute:

“South Australia:

South Australian Certificate of Education

stage 1 (year 11)—

6 annual subjects;

stage 2 (year 12)—

5 annual subjects”.

44.3 Subregulation 30 (6):

Omit from the table:

“Victoria:

Certificate of Education

 5 annual subjects”;

substitute:

“Victoria:

Victorian Certificate of Education

 

4 units each

  semester”.

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

45.1 Omit “in the course, or in courses at the same level,”, substitute “at the level of the tertiary course,”.

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

46.1 Subregulation 48 (3):

Omit the subregulation, substitute:

“(3) This concession does not apply if the illness was diagnosed by a medical practitioner before:

(a) if the student failed the course—the time when the student started the year of the course in which he or she failed; or

(b) if the student discontinued the course—the time when the student started the course;

unless the failure or discontinuance is because of an unexpectedly severe worsening of the illness.

“(4) This concession does not apply if the circumstances beyond control were apparent to the student before:

(a) if the student failed the course—the time when the student started the year of the course in which he or she failed; or

(b) if the student discontinued the course—the time when the student started the course;

unless the failure or discontinuance is because of an unexpectedly severe worsening of the circumstances.”.

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

47.1 Subregulation 52 (1):

After paragraph (b), insert:

“(ba) a psychologist who is registered with the Australian Psychologists Society has stated in writing that the student is intellectually disabled and cannot successfully undertake the normal full-time workload for his or her course because of the disability;”.

47.2 Subregulation 52 (1):

Add at the end:

“;or	(d) the student has a dependent child aged less than 16 years, and: (i) is receiving a widow B pension under the Social Security Act 1991; or (ii) is a sole parent and is receiving a special benefit under the Social Security Act 1991.”.

48.   Regulation 61 (What are the maximum living allowances?)

48.1 Paragraph 61 (a):

Omit “$8,638”, substitute “$7,980”.

48.2 Paragraph 61 (b):

Omit “$6,575”, substitute “$6,786”.

48.3 Paragraph 61 (c):

Omit the table, substitute:

 “TABLE

Category Under 18 years 18 years and over Special rate

Standard	$3,384	$4,070	$4,993
Independent	$5,587	$6,179	$7,506
Away-from-home	$5,587	$6,179	$7,506”.

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

49.1 Subregulations 63 (2) and (3):

Omit the subregulations, substitute:

“(2) When a student completes or withdraws from the course in respect of which he or she is qualified to get the special rate, the student no longer qualifies for the special rate unless, within 12 months of the day of the completion or withdrawal:

(a) if the level of the course is year 12— he or she starts a tertiary course; or

(b) if the course is an undergraduate course— he or she starts a graduate or postgraduate course that is a Group A course under regulation 38; or

(c) if the course is a course in English as a second language (‘ESL’)—he or she starts a secondary or tertiary course.”.

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

50.1 Subregulation 64 (1):

Omit “$6,575”, substitute “$6,786”.

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

51.1 Omit the regulation, substitute:

66

Is there a minimum rate of allowance?

“66. Living allowance is not payable to a student whose entitlement for the year (including any additional allowance under regulation 64 for the student’s spouse) is less than $1,000, unless the student is properly receiving financial supplement under Part 4a of the Act.”.

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

52.1 Omit all the words after “independent”, substitute:

“on and after his or her 24th birthday.”.

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

53.1 Subregulation 77 (1):

Omit “meets any of the following conditions for an isolated student:”, substitute:

“is not living with a parent3 and is an isolated student of one of the following kinds:”.

53.2 Subregulation 77 (1a):

Omit “and (b).”, substitute:

“and (b), and the student is not living with a parent4.”.

53.3 Subregulation 77 (2):

After “if”, insert “the student is not living with a parent4 and”.

53.4 Subregulation 77 (2):

Omit “parents’3 home”, substitute “parents’ principal home3 ”.

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

54.1 Omit the regulation, substitute:

82

Effect of student income-test on living allowance

“82.  (1)  A student eligible for living allowance can get the maximum allowance only if his or her income for the income-test period is not more than the amount calculated under the following formula:

$6,000 x income-test period (number of days)

number of days in the year.

“(2)  The maximum amount of allowance a student can get is reduced by $1 for each $2 that the student’s income exceeds the amount calculated under the formula.

“(3) In this regulation,income-test period means:

(a) the period that:

• (i)

  starts on the first day on which AUSTUDY could be payable to the student under regulation 7; and

• (ii)

  ends on the last day on which AUSTUDY could be payable to the student under regulation 8; or

(b) if the student is under 16 years of age on the day referred to in subparagraph (a) (i)—the period that:

• (i)

  starts on the student’s 16th birthday; and

• (ii)

  ends on the last day on which AUSTUDY could be payable to the student under regulation 8; or

(c) if the student is a student described in paragraph 5 (b) and is under 15 years of age on the day referred to in subparagraph (a) (i) of this subregulation—the period that:

• (i)

  starts on the student’s 15th birthday; and

• (ii)

  ends on the last day on which AUSTUDY could be payable to the student under regulation 8; or

(d) if subregulation 58 (2) or (3) applies to the student—the period that:

• (i)

  starts on the first day that AUSTUDY becomes payable under that subregulation; and

• (ii)

  ends on the last day on which AUSTUDY could be payable to the student under regulation 8; or

(e) if the student ceases study, or ceases full-time study, before the end of the course—the period that:

• (i)

  starts on the appropriate day under this subregulation; and

• (ii)

  ends on the earlier of, the day on which the student ceases study or full-time study, or the last day on which AUSTUDY could be payable to the student under regulation 8.”.

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

55.1 Subregulation 86 (1):

Omit “Parental income - Deductions for children”;

substitute “Gross parental income - Deductions for children”.

55.2 Subregulation 86 (1):

Omit “‘Parental income’ means”, substitute “‘Gross parental income’ means”.

55.3 Paragraph 86 (2) (c):

Omit the paragraph, substitute:

“(c) an amount received by, or on behalf of, the parent for the maintenance of the parent or of a dependant of the parent.”.

55.4 Insert after subregulation (2):

“(2a)  If, under subregulation (2), a parent’s income is determined to be an amount less than zero, the income is disregarded in determining parental income.”.

55.5 Add at the end:

“(6) If a parent is a person who gets a payment under the Commonwealth scheme known as the ‘TCF Special Allowance’, the payment is disregarded in determining parental income.”.

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

56.1 Subparagraph 87 (1) (b) (ii):

Omit “or over and under 25,”, substitute “years or over, but under 24 years,”.

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

57.1 Subregulation 88 (1):

Omit “A”, substitute “Subject to regulations 90, 91 and 92, a”.

57.2 Subregulation 88 (1):

Omit “$20,700.”, substitute “$21,150.”.

57.3 Subregulation 88 (2):

Omit “$20,700,”, substitute “$21,150,”.

57.4 Subregulation 88 (2):

Omit “89,”, substitute “90,”.

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

58.1 Omit the regulation, substitute:

90

Concession to the parental income test:

(b) fall in income

“90.  (1) If it would be unreasonable to apply regulation 86 in determining a student’s entitlement to living allowance, because the circumstances described in subregulation (4) apply to the student—the gross parental income, for the purpose of subregulation 86 (1), is taken to be:

(a) before 1 July in the year—the likely income of the parents for the current financial year; or

(b) on or after 1 July—the income of the parents in the immediately preceding financial year.

“(2)  If a parent’s income is determined to be, or likely to be, an amount less than zero, the income of that parent is taken to be zero for the purpose of determining the income, or the likely income, of the parents under this regulation.

“(3)  A student who is eligible to get living allowance, or increased living allowance, because of subregulation (1), can get the allowance or increased allowance from:

(a) the day the student’s eligibility began; or

(b) the day the parent’s income reduced;

whichever is the later.

“(4)  This regulation does not apply unless parental income in the year when the student is eligible for AUSTUDY is:

(a) substantially less than it was in the financial year referred to in subregulation 86 (1); and

(b) likely to continue to remain substantially less for 2 years after the later of:

• (i)

  1 January in the year of study; and

• (ii)

  the day the parent’s income reduced.”.

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

59.1 Subregulation 91 (1):

After paragraph (1) (a), insert:

“(ab) a payment under the Commonwealth scheme known as the TCF Special Allowance; or”.

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

60.1 Paragraph 94 (1) (c):

Omit the paragraph, substitute:

“(c) an amount received by, or on behalf of, the spouse for the maintenance of the spouse or of a dependant child of the spouse.”.

60.2 Add at the end:

“(4) If a spouse is a person retrenched from employment in the textiles, clothing or footwear industry who gets a payment under the Commonwealth scheme known as the TCF Special Allowance, the payment is disregarded in determining the spouse’s income.”.

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

61.1 Subregulation 95 (1):

Omit “$13,000.”, substitute “$13,300.”.

61.2 Subregulation 95 (2):

Omit “$13,000,”, substitute “$13,300,”.

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

62.1 Omit the regulation, substitute:

96

Concession to the spouse’s income test:

(b) fall in income

“96.  (1) If it would be unreasonable to apply regulation 94 in determining a student’s entitlement to living allowance, because the circumstances described in subregulation (4) apply to the student—the spouse’s income, for the purpose of subregulation 94 (1), is taken to be:

(a) before 1 July in the year—the likely income of the spouse for the current financial year; or

(b) on or after 1 July—the income of the spouse in the immediately preceding financial year.

“(2)  If a spouse’s income is determined to be, or likely to be, an amount less than zero, the income of the spouse is taken to be zero for the purpose of determining the income, or the likely income, of the spouse under this regulation.

“(3)  A student who is eligible to get living allowance, or increased living allowance, because of subregulation (1), can get the allowance or increased allowance from:

(a) the day the student’s eligibility began; or

(b) the day the spouse’s income reduced;

whichever is the later.

“(4)  This regulation does not apply unless the spouse’s income in the year when the student is eligible for AUSTUDY is:

(a) substantially less than it was in the financial year referred to in subregulation 94 (1); and

(b) likely to continue to remain substantially less for 2 years after the later of:

• (i)

  1 January in the year of study; and

• (ii)

  the day the spouse’s income reduced.”.

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

63.1 Subregulation 98 (2):

Omit “an”, substitute “a pensioner”.

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

64.1 Paragraph 99 (1) (b):

Omit the paragraph, substitute:

“(b) if he or she does not get financial supplement under Part 4a of the Act to the entire exclusion of AUSTUDY—gets living allowance or pensioner education supplement under AUSTUDY; and”.

64.2 Paragraph 99 (1a) (c):

Omit the paragraph, substitute:

“(c) if he or she does not get financial supplement under Part 4a of the Act to the entire exclusion of AUSTUDY—gets living allowance or pensioner education supplement under AUSTUDY; and”.

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

65.1 Paragraphs 109 (1) (c) and (d):

Omit the paragraphs, substitute:

“(c) if the number of a parent’s dependent children to which subregulation 87 (1) applies reduces.”.

66.   New regulation 111b

66.1 After regulation 111a, insert:

Exemption from requirement to provide tax file number	“111b.  (1) For the purposes of subsection 44a (4) of the Act, the following circumstances are prescribed: (a) the student, or the parent or spouse, under Division 5 of Part VA of the Income Tax Assessment Act 1936, is exempt from quoting a tax file number;
(b) the death of a parent or spouse makes that person’s tax file number no longer relevant to the student’s eligibility; (c) the physical safety of the student, or of the parent or spouse, is at risk from another person and disclosure of the tax file number could increase the risk;
(d) the student, or the parent or spouse, has lost all records of his or her tax file number because of fire or flood damage to his or her home within the 6 months preceding the application for AUSTUDY; (e) the student: (i) qualifies as independent under regulation 72, 73, 74, 75 or 76; and

 (ii) within the 6 months preceding the application for AUSTUDY—has lodged with the Department an application for, but has not received, a tax file number;

(f) at the time the tax file number needs to be given to the Secretary, the student is unable to comply because he or she is attending a religious or similar traditional ceremony.

“(2) Subregulation (1) ceases to have effect:

(a) in the case of a circumstance prescribed under paragraph (1) (a), (c) or (d)—if the circumstance changes; or

(b) in the case of paragraph (1) (e)—6 months after the fire or flood damage occurred; or

(c) in the case of paragraph (1) (f)—when a tax file number is given to the student; or

(d) in the case of paragraph (1) (g)—on the day when the student returns from the ceremony.

“(3) Paragraph (1) (f) is taken not to have applied to a student if, in respect of the application lodged with the Department, the Commissioner of Taxation refuses to give the student a tax file number.”.

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 16 December 1992.

2. Statutory Rules 1990 No. 443 as amended by 1991 No. 480; 1992 No. 24.

3. The following alterations are made to headings and notes in the Regulations:

 

Related regulation

Alteration

Regulation 53

Omit the heading, substitute:

“53

Sole parent pensioner

students and students

with disabilities:

workload”

Regulation 92

Omit note 2, substitute:

“2 Regulation 5 and subregulations 13 (2) and 77 (3) provide other concessions for students in State care.