AUSTUDY Regulations (Amendment) (Cth)

Statutory Rules 1997

No. 159 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 25 June 1997.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

AMANDA VANSTONE

Minister for Employment, Education, Training and Youth Affairs

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1.   Commencement

1.1   These Regulations are taken to have commenced on

1 January 1997.

2.   Amendment

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

3.   Regulation 12F (Application of this Division)

3.1   Omit the regulation, substitute:

12F

Interpretation

 “12F.(1)In these Regulations, unless the contrary intention appears:

 ‘net rental property loss’ means the amount (if any) by which expenses in relation to a rental property exceed the gross income gained from the property;

 ‘rental property’ means residential or commercial property (whether inside or outside Australia) from which an amount or premium is received as rent.

 “(2) In this Division:

 ‘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 wages or salary;

 ‘business activity’, in relation to a person, means a business in which the person is usually engaged for at least 17.5 hours in a week;

 ‘interest’, in relation to a trust:

• (a)

  includes:

• (i)

  the interest of a settlor in property subject to the trust; and

• (ii)

  a power of appointment under the trust; and

• (iii)

  a power to rescind or vary a provision of, or the effect of the exercise of a power under, the trust; and

• (iv)

  an interest that is conditional, contingent or deferred; but

• (b)

  does not include the interest of a person as:

• (i)

  an agent or creditor of the trustee; or

• (ii)

  a person employed by the trustee;

 ‘trust’ does not include:

• (a)

  a trust in relation to an account held in a bank or other financial institution only for the benefit of a dependent child of the trustee; or

• (b)

  a trust under which property of the estate of a deceased person, or a person who is insolvent under administration, is distributed; or

• (c)

  a trust in relation to a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 that is not an excluded fund within the meaning of that Act; or

• (d)

  a public unit trust in which units are held by 50 or more persons who are not members of the trustee’s family, or are offered for subscription or purchase to the public; or

• (e)

  the trust for a trust account that the trustee is required by a law to establish; or

• (f)

  a charitable trust; or

• (g)

  a trust created by operation of law.”.

4.   Regulation 12G (Application of Division)

4.1   Before subregulation 12G (1), insert:

 “(1A) This Division applies only to applications for AUSTUDY for a period starting on or after 1 January 1996.”.

5.    Regulation 12L (Who is a designated parent?)

5.1   Subparagraph 12L (1) (d) (iii):

Omit “for a business loss (whether current or carried forward); or”, substitute “for a business loss (whether current or carried forward) that does not consist only of a net rental property loss; or”.

6.   Regulation 12N (What are the actual means of a designated parent?)

6.1   Subregulation 12N (1):

After “the parent and”, insert “each member of”.

6.2   Paragraph 12N (1A) (a):

Omit the paragraph, substitute:

• “(a)

  expenditure by the parent, or a member of his or her family (a ‘family member’), for the purchase price of an interest in property that does not increase the total value of the property of the parent and each family member; or”.

6.3   Paragraphs 12N (1A) (c) and (d):

Omit “or his or her family”, substitute “, or a family member,”.

6.4   Subregulation 12N (1A):

Add at the end:

• “; or (e)

  if the parent or a family member is a person with a disability—expenditure by the parent or family member to acquire, or modify, property for the person to assist him or her to overcome the disability; or

• (f)

  expenditure by the parent, or a family member, of money borrowed by the parent or family member for the purchase price of:

• (i)

  the sole or principal residence of the parent or family member; or

• (ii)

  an interest in land, or in a building not mentioned in subparagraph (i); or

• (iii)

  a motor vehicle, or a powered aircraft or watercraft; or

• (g)

  expenditure by the parent, or a family member, to repay the principal or interest in relation to money borrowed by the parent or family member for any other purpose; or

• (h)

  expenditure or savings from an amount of AUSTUDY to which the parent or a family member is, or may be, entitled under Part 2 of the Act; or

• (i)

  expenditure or savings from an amount of financial supplement to which the parent or a family member is, or may be, entitled under Part 4A of the Act; or

• (j)

  expenditure from the income from a business activity of the parent or a family member for the business activity; or

• (k)

  expenditure or savings of not more than $6,000 from any pay and allowances mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936 and paid to the parent or a family member; or

• (l)

  subject to subregulation (1B), expenditure or savings from income earned from independent employment by a family member described in paragraph (b) or (d) of the definition of ‘family’ in subregulation (5).”.

6.5   Subregulation 12N (1B):

Omit “paragraph (1A) (a)”, substitute “paragraph (1A) (l)”.

7.   Regulation 12S (Who is a designated spouse?)

7.1   Subparagraph 12S (1) (d) (iii):

Omit “for a business loss (whether current or carried forward); or”, substitute “for a business loss (whether current or carried forward) that does not consist only of a net rental property loss; or”.

8.   Regulation 12U (What are the actual means of a designated spouse?)

8.1   Subregulation 12U (1):

After “the spouse and”, insert “each member of”.

8.2   Paragraph 12U (1A) (a):

Omit the paragraph, substitute:

• “(a)

  expenditure by the spouse, or a member of his or her family (a ‘family member’), for the purchase price of an interest in property that does not increase the total value of the property of the spouse and each family member; or”.

8.3   Paragraphs 12U (1A) (c) and (d):

Omit “or his or her family”, substitute “, or a family member,”.

8.4   Subregulation 12U (1A):

Add at the end:

• “; or (e)

  if the spouse or a family member is a person with a disability—expenditure by the spouse or family member to acquire, or modify, property for the person to assist him or her to overcome the disability; or

• (f)

  expenditure by the spouse, or a family member, of money borrowed by the spouse or family member for the purchase price of:

• (i)

  the sole or principal residence of the spouse or family member; or

• (ii)

  an interest in land, or in a building not mentioned in subparagraph (i); or

• (iii)

  a motor vehicle, or a powered aircraft or watercraft; or

• (g)

  expenditure by the spouse, or a family member, to repay the principal or interest in relation to money borrowed by the spouse or family member for any other purpose; or

• (h)

  expenditure or savings from an amount of AUSTUDY to which the spouse or a family member is, or may be, entitled under Part 2 of the Act; or

• (i)

  expenditure or savings from an amount of financial supplement to which the spouse or a family member is, or may be, entitled under Part 4A of the Act; or

• (j)

  expenditure from the income from a business activity of the spouse or a family member for the business activity; or

• (k)

  expenditure or savings of not more than $6,000 from any pay and allowances mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936 and paid to the spouse or a family member; or

• (l)

  subject to subregulation (1B), expenditure or savings from income earned from independent employment by a family member described in paragraph (a) or (c) of the definition of ‘family’ in subregulation (5).”.

8.5   Subregulation 12U (1B):

Omit “paragraph (1A) (a)”, substitute “paragraph (1A) (l)”.

9.   Regulation 12Y (Who is a designated student?)

9.1   Subparagraph 12Y (1) (d) (iii):

Omit “for a business loss (whether current or carried forward); or”, substitute “for a business loss (whether current or carried forward) that does not consist only of a net rental property loss; or”.

10.   Regulation 12ZA (What are the actual means of the spouse of a designated student?)

10.1   Subregulation 12ZA (1):

After “the spouse and”, insert “each member of”.

10.2   Paragraph 12ZA (2) (a):

Omit the paragraph, substitute:

• “(a)

  expenditure by the spouse, or a member of his or her family (a ‘family member’), for the purchase price of an interest in property that does not increase the total value of the property of the spouse and each family member; or”.

10.3   Paragraphs 12ZA (2) (c) and (d):

Omit “or his or her family”, substitute “, or a family member,”.

10.4   Subregulation 12ZA (2):

Add at the end:

• “; or (e)

  if the spouse or a family member is a person with a disability—expenditure by the spouse or family member to acquire, or modify, property for the person to assist him or her to overcome the disability; or

• (f)

  expenditure by the spouse, or a family member, of money borrowed by the spouse or family member for the purchase price of:

• (i)

  the sole or principal residence of the spouse or family member; or

• (ii)

  an interest in land, or in a building not mentioned in subparagraph (i); or

• (iii)

  a motor vehicle, or a powered aircraft or watercraft; or

• (g)

  expenditure by the spouse, or a family member, to repay the principal or interest in relation to money borrowed by the spouse or family member for any other purpose; or

• (h)

  expenditure or savings from an amount of AUSTUDY to which the spouse or a family member is, or may be, entitled under Part 2 of the Act; or

• (i)

  expenditure or savings from an amount of financial supplement to which the spouse or a family member is, or may be, entitled under Part 4A of the Act; or

• (j)

  expenditure from the income from a business activity of the spouse or a family member for the business activity; or

• (k)

  expenditure or savings of not more than $6,000 from any pay and allowances mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936 and paid to the spouse or a family member; or

• (l)

  subject to subregulation (3), expenditure or savings from income earned from independent employment by a family member described in paragraph (a) or (c) of the definition of ‘family’ in subregulation (8).”.

10.5   Subregulation 12ZA (3):

Omit “paragraph (2) (a)”, substitute “paragraph (2) (l)”.

11.Regulation 12ZF (What are the actual means of a designated student?)

11.1   Subregulation 12ZF (1):

After “the student and”, insert “each member of”.

11.2    Paragraph 12ZF (2) (a):

Omit the paragraph, substitute:

• “(a)

  expenditure by the student, or a member of his or her family (a ‘family member’), for the purchase price of an interest in property that does not increase the total value of the property of the student and each family member; or”.

11.3   Paragraphs 12ZF (2) (c) and (d):

Omit “or his or her family”, substitute “, or a family member,”.

11.4   Subregulation 12ZF (2):

Add at the end:

“; or (e) if the student or a family member is a person with a disability—expenditure by the student or family member to acquire, or modify, property for the person to assist him or her to overcome the disability; or
(f) expenditure by the student, or a family member, of money borrowed by the student or family member for the purchase price of:
(i) the sole or principal residence of the student or family member; or
(ii) an interest in land, or in a building not mentioned in subparagraph (i); or
(iii) a motor vehicle, or a powered aircraft or watercraft; or
(g) expenditure by the student, or a family member, to repay the principal or interest in relation to money borrowed by the student or family member for any other purpose; or
(h) expenditure or savings from an amount of AUSTUDY to which the student or a family member is, or may be, may be entitled under Part 2 of the Act; or
.	(i) expenditure or savings from an amount of financial supplement to which the student or a family member is, or may be, entitled under Part 4A of the Act; or
(j) expenditure from the income from a business activity of the student or a family member for the business activity; or
(k) expenditure or savings of not more than $6,000 from any pay and allowances mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936 and paid to the student or a family member; or
(l) subject to subregulation (3), expenditure or savings from income earned from independent employment by a family member described in paragraph (b) of the definition of ‘family’ in subregulation (8).”.

11.5   Subregulation 12ZF (3):

Omit “paragraph (2) (a)”, substitute “paragraph (2) (l)”.

12.   Regulation 82 (Effect of student income test on living allowance)

12.1   Subregulation 82 (1B):

Omit all the words before the formula, substitute:

 “(1B) If the student is a designated student for regulation 12ZC, his or her relevant income is the amount calculated using the formula:”.

13.   Regulation 86 (What is parental income?)

13.1   Subregulation 86 (1) (definition of NRPL):

Omit all the words before paragraph (a), substitute:

 “NRPL, in relation to a rental property, means the net rental property loss incurred by the student’s parent or parents:”.

13.2   Paragraph 86 (1A) (a):

Omit the paragraph, substitute:

• “(a)

  ‘rental property’ means a rental property from which an amount or premium is received by the student’s parent or parents as rent; and”.

14.   Regulation 87A (Parental income—designated parents)

14.1   Subregulation 87A (1):

Omit all the words before the formula, substitute:

 “(1) If the student is described in regulation 12J, parental income for a year of study is the amount calculated using the formula:”.

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

15.1   Paragraph 94 (1AA) (a):

Omit the paragraph, substitute:

• “(a)

  ‘rental property’ means a rental property from which an amount or premium is received by the spouse as rent; and”.

16.   Regulation 94A (Spouse income—designated spouse)

16.1   Subregulation 94A (1):

Omit all the words before the formula, substitute:

 “(1) If the student is described in regulation 12Q, the income of the student’s spouse for a year of study is the amount calculated using the formula:”.

17.   Regulation 94B (Spouse income—designated students with a spouse)

17.1   Subregulation 94B (1):

Omit all the words before the formula, substitute:

 “(1) If the student is described in regulation 12W, the income of the student’s spouse for a year of study is the amount calculated using the formula:”.

18.   Regulation 113 (Definitions)

18.1   Subregulation 113 (1) (Index):

Insert in the Index in the appropriate alphabetical position, determined on a letter-by-letter basis:

“net rental property loss

 . .  . . .  . .12F (1)

 

rental property

 .  . . .  . . .  . . . .12F (1)”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 June 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 in the Senate on 10 September 1996); 1996 Nos. 21, 245, 246, 261 and 275; 1997 No. 83.