AUSTUDY Regulations

AUSTUDY Regulations

Statutory Rules 1990 No. 443 as amended

made under the

Student and Youth Assistance Act 1973

This compilation was prepared on 18 December 2003
taking into account amendments up to SR 2003 No. 347

[Note:  These Regulations were repealed by SR 2003 No. 347]

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

Chapter 1 Preliminary

 1 Name of these Regulations [see Note 1]. 

 2 When do these Regulations come into effect? 

Chapter 2 Who can get AUSTUDY?

 3 Summary of requirements 

Part 1 General requirements for all students

 5 Age 

 6 Approved courses of study 

Division 1 When AUSTUDY is payable

 7 When is AUSTUDY payable from?1

 8 AUSTUDY is payable until when? 

 9 Is AUSTUDY paid for the long vacation?1

 10 Is AUSTUDY paid for vacations during the year? 

 11 Is AUSTUDY paid during illness? 

 12 Is AUSTUDY paid during a change in course or institution? 

Division 1A Payments

 12A When and to whom is AUSTUDY paid? 

 12B Amount of each payment 

 12C What happens if a student’s entitlement alters? 

 12D What happens if AUSTUDY has been underpaid? 

 12E What happens if AUSTUDY has been overpaid? 

Division 1B Actual means test

 12F Interpretation 

 12FA Meanings of savings in Division 1B 

 12G Application of Division 

 12J To whom does this Subdivision apply? 

 12K Who is a designated  parent 

 12L Students not entitled to living allowance 

 12M Actual means: designated parents 

 12MA AMT concession: designated parents 

 12MB How does concession affect living allowance? 

 12N What is not the actual means of a designated parent 

 12Q To whom this Subdivision applies 

 12R Who is a designated spouse? 

 12S Students not entitled to living allowance 

 12T Actual means: designated spouses 

 12TA AMT concession: designated spouse 

 12TB How does concession affect living allowance? 

 12U What is not the actual means of a designated spouse 

 12W To whom this Subdivision applies 

 12X Who is a designated student 

 12Y Students not entitled to living allowance 

 12Z Actual means: designated students with a spouse 

 12ZAA AMT concession: designated student with a spouse 

 12ZA What is not the actual means of the spouse of a designated student             

 12ZAB How does concession affect living allowance? 

 12ZC To whom this Subdivision applies 

 12ZD Students not entitled to living allowance 

 12ZE Actual means: designated students without a spouse 

 12ZEA AMT concession: designated students without a spouse 

 12ZEB How does concession affect living allowance? 

 12ZF What is not the actual means of a designated student 

Division 2 Assets test

 13 Do assets affect AUSTUDY? 

 14 What is included in assets? 

 15 What is excluded from assets? (a) principal home 

 16 What is excluded from assets? (b) items for use by disabled people             

 17 What is excluded from assets? (c) debts on assets 

 18 What is excluded from assets? (d) unreceivable assets 

 18A What is excluded from assets: (e) farm assets 

 19 How are business assets treated? 

 20 Evidence of value of assets 

Division 3 Students who are excluded from getting AUSTUDY

 21 Excluded: (a) students getting other Commonwealth assistance             

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

 23 Excluded: (c) students who are full-time apprentices or trainees             

 24 Excluded: (d) students in lawful custody 

 25 Excluded: (e) students taking correspondence courses while overseas             

Chapter 2 Who can get AUSTUDY?

Part 2 Special requirements for secondary students

 26 What is a secondary student? 

 27 Where can secondary students study? 

 28 Different levels of secondary courses 

 29 Workload: (a) secondary students attending school 

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

 32 Progress: (b) repeating year 12 study 

Chapter 2 Who can get AUSTUDY?

Part 3 Special requirements for tertiary students

Division 1 Preliminaries

 33 Where can tertiary students study? 

Division 2 Workload

 34 Workload: tertiary students 

 35 Workload: normal amount of full-time work 

 36 Workload: concession — academic and vocational reasons 

Division 3 Progress to later years and other courses — Preliminaries

 38 Levels of tertiary courses 

Division 4 Progress Rules

 41 Previous study: time spent on a course 

 43 Previous study: combined courses 

 45 Previous study: postgraduate study 

 46 Previous study: honours year and Master’s qualifying course             

Division 5 Concessions

 47 Concession (a) completed previous course needed for entry to present course             

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

 49 Progress: concession (c) short TAFE courses 

 50 Progress: concession (d) study more than 10 years ago 

 51 Progress: concession (e) study in Australia for a non‑approved course             

Chapter 2 Who can get AUSTUDY?

Part 4 Students with disabilities and students getting certain pensions

 52 Recognition of students with disabilities and students getting certain pensions             

 53 Students with disabilities and students getting certain pensions: workload             

 55 Students with disabilities and students getting certain pensions: total length of tertiary study             

Chapter 3 How to apply for AUSTUDY

 56 Use the AUSTUDY application form 

 57 Who else must sign the form? 

 58 Time limit for applying 

 59 Date when documents are lodged 

Chapter 4 What is the Living Allowance?

Part 1 The kinds of living allowance and their value

 60 Kinds of living allowance 

 61 What is the maximum living allowance? 

 62 How is a student’s living allowance worked out? 

 63 Who gets special rate living allowance? 

 64 Is there additional allowance for a spouse?[see Notes 2, 3 and 4]             

 65 Only one amount of living allowance can be paid 

 66 Is there a minimum rate of allowance? 

Chapter 4 What is the living allowance?

Part 2 What are the conditions for the independent living allowance?

 67 Who gets the independent rate? 

 68 Independent student: (a) age 

 69 Independent student: (b) marriage 

 70 Independent student: (c) has a dependent child 

 71 Independent student: (d) periods in the workforce 

 72 Independent student: (e) orphan 

 73 Independent student: (f) parents cannot exercise responsibilities             

 74 Independent student: (g) unreasonable to live at home 

 75 Independent student: (h) refugee 

 76 Independent student: (i) ward 

Chapter 4 What is the Living Allowance?

Part 3 What are the conditions for getting the away-from-home living allowance?

 77 Who gets the away-from-home living allowance? 

 78 Isolated student: (a) the parents’ principal home is isolated 

 79 Isolated student: (b) frequent changes of home 

 80 Isolated student: (c) special courses of study 

 81 Isolated student: (d) disability 

Chapter 4 What is the Living Allowance?

Part 4 Income test: student

 82 Effect of student income-test on living allowance 

 83 What is a student’s income? 

Chapter 4 What is the living allowance?

Part 5 Income test: parental

 84 When does the parental income test apply? 

 85 Whose income is taken into account? 

 86 What is parental income 

 87 What are the deductions for children? 

 87A Parental income — designated parents 

 88 How does parental income affect living allowance? 

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

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

 92 Concession to the parental income test: (d) students in State care             

Chapter 4 What is the living allowance?

Part 6 Income test: spouse

 93 When does the spouse income test apply? 

 94 What is the spouse’s income 

 94A Spouse income — designated spouse 

 94B Spouse income — designated students with a spouse 

 95 How spouse’s income affects living allowance 

 96 Concession to the spouse’s income test: (b) fall in income 

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

Chapter 5 Students with pensions

 98 Can students with pensions get AUSTUDY? 

Chapter 6 What is the allowance for fares?

 99 Who can get the fares allowance? 

 100 What journeys get fare allowance 

 101 How much is the fares allowance 

 102 Is there a time limit for claiming fares allowance? 

Chapter 6A What is rent assistance?

Part 1 What are the conditions for getting rent assistance

 102A Who can get rent assistance? 

 102B What happens if a student turns 25 years of age? 

 102C What happens if a student has a spouse? 

 102D What is rent? 

 102E How much rent does a student have to pay 

 102F What is the amount of rent assistance 

Chapter 6A What is rent assistance?

Part 2 Student income test

 102G What is the effect of the student income test on rent assistance?             

Chapter 6A What is rent assistance?

Part 3 Rent assistance under the Social Security Act 1991

 102H Students who have received rent assistance under the Social Security Act 1991             

Chapter 8 Notifying changes in circumstances

 108 Insufficient information or evidence about a student 

 109 What changes in circumstances must the Department be told about?             

 110 How is the Department to be told about changes in circumstances?             

Chapter 9 Miscellaneous matters

 111 Statements about income etc 

 111A Interest on late repayment of an overpayment 

 111B Exemption from requirement to provide tax file number 

 112 What is the official status of notes? 

 113 Definitions 

 114 References to Department 

 115 References to Secretary 

 116 References to Department of Social Security 

 117 References to Secretary to Department of Social Security 

Schedule 1  

Schedule 2  

Schedule 6  

Notes  

Chapter 1 Preliminary

1 Name of these Regulations [see Note 1]

  These Regulations may be cited as the AUSTUDY Regulations

2 When do these Regulations come into effect?

  These Regulations commence on 1 January 1991.

Chapter 2 Who can get AUSTUDY?

3 Summary of requirements

  To get AUSTUDY a student must meet the requirements set out in this chapter as follows:

 (a) secondary student: Parts 1 and 2;

 (b) tertiary student: Parts 1 and 3.

Part 1 General requirements for all students

5 Age

 (1) To get AUSTUDY, a student must be:

 (a) at least 16 years old; or

 (b) entitled to leave school under the law of his or her State or Territory and covered by:

 (i) regulation 72 (‘Independent student: (e) orphan’); or

 (ii) regulation 73 (‘Independent student: (f) parents cannot exercise responsibilities’); or

 (iii) regulation 74 (‘Independent student: (g) unreasonable to live at home’); or

 (iv) regulation 75 (‘Independent student: (h) refugee’); or

 (v) regulation 92 (‘Concession to the parental income test: (d) students in State care’).

6 Approved courses of study

 (1) To get AUSTUDY, a student must be taking a course that the Minister has approved for the AUSTUDY scheme under paragraph 7 (1) (c) of the Student and Youth Assistance Act 19731.

 (2) An approved course can be:

 (a) a short course — that is a course that lasts for 30 weeks or less (including vacations); or

 (b) a late starting course — that is a course that:

 (i) lasts for more than 30 weeks (including vacations); and

 (ii) starts after 31 March but before 1 July, or starts after 31 July; or

 (c) a full year course — that is a course that lasts for more than 30 weeks (including vacations) and is not a late starting course.

Division 1 When AUSTUDY is payable

7 When is AUSTUDY payable from?1

 (1) Unless these Regulations provide differently, AUSTUDY can be payable from:

 (a) 1 January if the student is undertaking a full year course and starts full-time study in the year before 1 July and before the start of second semester for that year; or

 (b) 1 July if the course is a full year course and the student starts full-time study in the year on or after 1 July or after the start of second semester for that year; or

 (c) the start of the student’s course in the year if the course is a short or late starting course and the student is not undertaking the course for a second year; or

 (d) 1 January if the course is a short or late starting course and the student is undertaking the course for a second year.

 (1A) If a student resumes study after discontinuing full-time study for more than 1 semester (disregarding a vacation or long vacation), AUSTUDY:

 (a) is not payable to the student under paragraph (1) (a), (b) or (d), unless:

 (i) the discontinuance was due to the student’s illness or other circumstances beyond his or her control; or

 (ii) the student got AUSTUDY in the preceding year as a part-time student; and

 (b) if paragraph (a) does not apply — is payable to the student from the start of the student’s course.

 (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 Part 4 in this Chapter.

 (3) For the purposes of this regulation, if an articulated short course in an articulated short course sequence can be combined with another articulated short course in the sequence, that sequence is taken to be:

 (a) a full year course, if the sequence is equivalent to a full year course; and

 (b) a late starting course, if the sequence is equivalent to a late starting course; or

 (c) a short course, if the sequence is equivalent to a short course.

 (4) In these Regulations:

articulated short course means a short course for which, together with another short course, an award or accreditation may be awarded for another approved course.

articulated short course sequence means a sequence of 2 or more articulated short courses that:

 (a) is undertaken by a student in a year of study; and

 (b) begins on the first day of the first course in the sequence; and

 (c) ends at the end of the last day of the last course in the sequence.

8 AUSTUDY is payable until when?

 (1) Unless these Regulations provide differently, for each circumstance set out in Column 1 of the following table, AUSTUDY can be payable up to the date opposite the circumstance in Column 2 of the following table:

 (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 Part 4 in this Chapter.

 (3) For the purposes of this regulation, if an articulated short course in an articulated short course sequence can be combined with another articulated short course in the sequence, that sequence is taken to be:

 (a) a full year course, if the sequence is equivalent to a full year course; and

 (b) a late starting course, if the sequence is equivalent to a late starting course; and

 (c) a short course, if the sequence is equivalent to a short course.

9 Is AUSTUDY paid for the long vacation?1

 (1) AUSTUDY is payable for the period from 1 January of the year of study to when the student’s course starts in the year only if:

 (a) the course is a full year course; and

 (b) the student:

 (i) starts full-time study in his or her course by the Friday of the second week of classes in the first term or semester; or

 (ii) was prevented by illness or circumstances beyond his or her control from starting on time; or

 (iii) in the case of a secondary student — the school has approved the absence of the student; and

 (c) the student is entitled to get AUSTUDY for the first day on which he or she starts to undertake his or her course in the year.

 (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 Part 4 in this Chapter.

10 Is AUSTUDY paid for vacations during the year?

 (1) AUSTUDY is payable for a vacation (other than the long vacation1) only if:

 (a) the student:

 (i) is undertaking a full year course2 and starts study full‑time again by the Friday of the second week of classes in the term or semester immediately after the vacation; or

 (ii) is undertaking a short course or a late starting course2 and starts full-time study again on the day immediately after the vacation; or

 (b) the student:

 (i) starts full-time study again in the term or semester at some later time; and

 (ii) was prevented by illness or circumstances beyond his or her control from starting on time, or the school has approved the absence in the case of a secondary student.

 (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 Part 4 in this Chapter.

11 Is AUSTUDY paid during illness?

 (1) A secondary student who attends a school can continue to get AUSTUDY for a period of absence if the school approves the absence.

 (2) Any other secondary student or a tertiary student can continue to get AUSTUDY for a period while not undertaking his or her course because of illness or injury if:

 (a) the student remains enrolled in the course for the whole of the period; and

 (b) a registered medical practitioner gives a certificate stating:

 (i) the nature of the illness or injury; and

 (ii) that the student cannot study because of the illness or injury; and

 (iii) that the student is likely to be able to resume study within 16 weeks; and

 (c) the certificate is lodged with the Department within a reasonable time.

 (3) But if the period referred to in subsection (2) lasts more than 8 weeks, then the student can continue to get AUSTUDY only if:

 (a) the academic registrar of the institution offering the course, or an equivalent officer, states in writing that the student will be able to resume full-time study at the end of the period mentioned in the medical practitioner’s certificate; and

 (b) this statement is lodged with the Department within a reasonable time.

 (4) A student cannot get AUSTUDY under subregulation (2) for more than 16 weeks in one year.

 (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 Part 4 in this Chapter.

12 Is AUSTUDY paid during a change in course or institution?

 (1) Unless these Regulations provide differently, a student can continue to get AUSTUDY for a period between completing or otherwise discontinuing a course and starting a new course, if:

 (a) the student gets AUSTUDY for both:

 (i) the last day in the former course; and

 (ii) the first day in the new course; and

 (b) the student starts in the new course:

 (i) within 28 days; or

 (ii) later than that because of circumstances beyond the student’s control but as soon as those circumstances stop applying; and

 (c) the student starts in the same year in which he or she completed or discontinued study in the former course.

 (2) Unless these Regulations provide differently, a student can continue to get AUSTUDY for a period between discontinuing a course at one institution and starting it at a different institution, if:

 (a) the student gets AUSTUDY for both:

 (i) the last day at the former institution; and

 (ii) the first day at the new institution; and

 (b) the student starts at the new institution:

 (i) within 28 days; or

 (ii) later than that because of circumstances beyond the student’s control but as soon as those circumstances stop applying; and

 (c) the student starts in the same year in which he or she completed or discontinued study at the former institution.

Division 1A Payments

12A When and to whom is AUSTUDY paid?

 (1) Subject to subregulation (2), AUSTUDY is paid fortnightly to a student.

 (2) AUSTUDY is paid to a parent of the student, if:

 (a) the student is undertaking a secondary course at a secondary school; and

 (b) the student has not turned 18; and

 (c) the student’s entitlement to living allowance:

 (i) is calculated taking account of the parent’s income; or

 (ii) would be calculated taking account of the parent’s income, if regulation 98 (‘Can students with pensions get AUSTUDY?’) did not apply; and

 (d) the student usually lives with the parent during the academic year.

 (3) A parent of the student may request the Department in writing to pay AUSTUDY to the student if:

 (a) paragraphs (2) (a), (b) and (c) apply to the student; and

 (b) the student lives at the home of either of his or her parents, except during the academic year when he or she boards away from home.

 (4) The Department must pay AUSTUDY to a student whose parent makes a request in accordance with subregulation (3).

 (5) Subregulations (2), (3) and (4) do not apply if:

 (a) the student qualifies as independent under regulation 67 (‘Who gets the independent rate?’); or

 (b) paragraph 92 (1) (a), (b) or (c) (‘Concession to the parental income test: (d) students in State care’) applies to the student, unless:

 (i) a State or Territory welfare authority; or

 (ii) an organisation approved in writing by a State or Territory welfare authority to arrange for foster care for the student;

  has advised the Department in writing that it would be in the best interests of the student for AUSTUDY to be paid to the parent; or

 (c) there are reasonable grounds for believing that AUSTUDY payments would not be applied to the support of the student.

12B Amount of each payment

 (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:

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:

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.

12C What happens if a student’s entitlement alters?

  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, the Secretary 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?

  If the Department determines that an AUSTUDY payment to a student, or to a parent of a student for the student, is less than the amount to which that person is entitled, an amount equal to the difference between the entitlement and the amount paid to the person must be added as soon as practicable to a fortnightly AUSTUDY payment to the person.

12E What happens if AUSTUDY has been overpaid?

  If, in a year, the total of the AUSTUDY payments made to a student, or to a parent of a student for the 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 Department had correctly determined 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.

Division 1B Actual means test

Subdivision A Preliminary

12F Interpretation

 (1) In these Regulations unless the contrary intention appears:

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.

loan includes:

 (a) a transaction (whatever its terms or form) that gives substantial effect to an advance of money; and

 (b) the provision of credit or another form of financial accommodation; and

 (c) the payment of an amount to or for a person who is obliged (whether explicitly or implicitly) to repay the amount.

net passive business loss means the amount by which the total amount of losses or outgoings, which are or will be deductible under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 because they were necessarily incurred in relation to a passive business, exceeds any gross income from the business.

passive business, for a person, means a business in relation to which the person is usually engaged for less than 17.5 hours in a week.

 (2) In this Division:

AIC scheme means the Commonwealth scheme known as the Assistance for Isolated Children scheme.

arm’s length loan means a loan, by a person or body whose usual business is to make loans to members of the public, to:

 (a) a designated parent for regulation 12K or a member of his or her family for subregulation 12N (5); or

 (b) a designated spouse for regulation 12R or a member of his or her family for subregulation 12U (5); or

 (c) the spouse of a designated student for regulation 12X or a member of his or her family for subregulation 12ZA (8); or

 (d) a designated student for regulation 12ZC or a member of his or her family for subregulation 12ZF (8).

income assistance means:

 (a) a payment under:

 (i) Part 2 or 4A of the Act; or

 (ii) the scheme known as the ABSTUDY scheme; or

 (iii) the AIC scheme; or

 (b) a payment under a scholarship; or

 (c) the amount (that is exempt from income tax under Division 1AA of Part 3 of the Income Tax Assessment Act 1936 or Subdivision 52-A, 52-B or 52-C of the Income Tax Assessment Act 1997) of a payment:

 (i) under the Veterans’ Entitlements Act 1986; or

 (ii) under the Social Security Act 1991, except a Family Tax Payment under Part 2.17AA of that Act; or

 (d) a payment by a State or Territory, or a State or Territory authority, to assist the primary, secondary or tertiary education of a student.

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.

savings has the meanings given by regulation 12FA.

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.

12FA Meanings of savings in Division 1B

 (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.

12G Application of Division

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

 (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 exceptional circumstances relief payment.

 (2) For paragraph (1) (b), if, in a year of study, a parent’s or spouse’s entitlement to exceptional circumstances relief payment ends, the parent or spouse is taken to receive the payment until the end of the year.

 (3) In these Regulations:

exceptional circumstances relief payment means:

 (a) exceptional circumstances relief payment under the Farm Household Support Act 1992; or

 (b) drought relief payment under that Act as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997.

Subdivision B Actual means test: designated parent

12J To whom does this Subdivision apply?

  This Subdivision applies to a student who:

 (a) has a parent who is a designated parent within the meaning of regulation 12K; and

 (b) qualifies for:

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

 (ii) the standard living allowance under regulation 61.

12K Who is a designated  parent

 (1) A parent is a designated parent if subregulation 85 (2) applies to the parent and he or she:

 (a) within 10 years before 1 January in the year of study, first entered Australia under 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 (the value of which is $2,500 or more) in assets outside Australia and its external territories; or

 (c) in the last financial year ending before the year of study, had an interest in a proprietary company, an unlisted public company or a trust; or

 (d) in the last financial year ending before the year of study, derived income of $2,500 or more from a source outside Australia and its external territories, except Norfolk Island, that does not consist only of income from a pension or similar payment that was income of the parent for Part 5 of Chapter 4; or

 (e) in the last financial year ending before the year of study, derived income from a salary or wage and has claimed, or will claim, a tax deduction for a business loss (whether for that year or a previous year) that does not consist only of a net passive business loss; or

 (f) in the last financial year ending before the year of study, was a member of a partnership; or

 (g) in the last financial year ending before the year of study, was a self-employed person (except a self-employed person who was wholly or mainly engaged in a primary production business owned by the person).

 (2) In paragraph (1) (g):

self-employed person means a person who works for gain or reward other than under a contract of employment or apprenticeship, whether or not the person employs 1 or more other persons.

12L Students not entitled to living allowance

 (1) A student who has a designated parent is not entitled to living allowance in a year of study unless the details of the actual means of the parent under subregulation 12M (1) or (2) for the relevant financial year supplied by or for the student in relation to the student’s application for AUSTUDY are materially correct.

 (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).

12M Actual means: designated parents

 (1) The actual means of a designated parent for the year of study is taken to be the amount that equates to total expenditure by, and savings of, the parent and each member of his or her family (a ‘family member’) in the last financial year ending before the year of study.

 (2) However, if regulation 12MA applies, the actual means of a designated parent for the year of study is taken to be the amount that equates to the total expenditure by, and savings of, the parent and each family member in the financial year ending in the year of study.

 (3) 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.

 (4) In this regulation:

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

12MA AMT concession: designated parents

 (1) This regulation applies if:

 (a) the amount mentioned in subregulation 12M (2) is, or is likely to be, substantially less than the amount mentioned in subregulation 12M (1); and

 (b) subregulation (2), (4) or (5) applies.

 (2) This subregulation applies if:

 (a) paragraph (1) (a) applies because of an event that is beyond the control of the parent or family member; and

 (b) the amount mentioned in subregulation 12M (2) is likely to continue to be the amount that equates to the total expenditure by, and savings of, the parent and each family member (the family’s means) for at least 2 years after the later of:

 (i) the day when the event happened; and

 (ii) 1 January in the year of study.

 (3) For paragraph (2) (a), an expected decrease in the profitability of a business in which the parent or a family member has an interest is not ordinarily to be taken to be an event that is beyond the control of the parent or family member.

 (4) This subregulation applies if:

 (a) paragraph (1) (a) applies because the parent or a family member is enrolled in a course as a full‑time student for the year of study; and

 (b) the amount mentioned in subregulation 12M (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the day when the parent or family member enrolled in the course; and

 (ii) 1 January in the year of study.

 (5) This subregulation applies if:

 (a) paragraph (1) (a) applies because:

 (i) the parent had any interest of the kind mentioned in paragraph 12K (1) (c) in the last financial year ending before the year of study, but no longer has any such interest; or

 (ii) the parent derived income mentioned in paragraph 12K (1) (d) in that year, but is no longer deriving that income; or

 (iii) subregulation (6) applies to the parent; or

 (iv) the parent was a member of any partnership in the year, but is no longer a member of any such partnership; or

 (v) the parent was a self-employed person within the meaning of paragraph 12K (1) (g) in the year, but is no longer a self-employed person; and

 (b) the amount mentioned in subregulation 12M (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the relevant day; and

 (ii) 1 January in the year of study.

 (6) This subregulation applies to a parent if the parent derived income mentioned in paragraph 12K (1) (e) in the last financial year ending before the year of study and has claimed, or will claim, in that year a tax deduction mentioned in that paragraph for that year or a previous year, but:

 (a) is no longer deriving that income; or

 (b) has not claimed, or will not claim, a tax deduction of that kind in the financial year ending in the year of study for that year or a previous year.

 (7) In this regulation:

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

relevant day means the day, or the last of the days, when:

 (a) if subparagraph 12MA (5) (a) (i), applies — the parent ceased to have the interest; and

 (b) if subparagraph 12MA (5) (a) (ii) applies — the parent ceased to derive the income; and

 (c) if subparagraph 12MA (5) (a) (iv) applies — the parent ceased to be a member of the partnership; and

 (d) if subparagraph 12MA (5) (a) (v) applies — the parent ceased to be a self-employed person; and

 (e) if paragraph 12MA (6) (a) applies — the parent ceased to derive the income; and

 (f) if paragraph 12MA (6) (b) applies — the financial year ending in the year of study began.

12MB How does concession affect living allowance?

 (1) A student who is eligible to get living allowance, or increased living allowance, because of regulation 12MA, can get the allowance or increased allowance from the last of:

 (a) the day when the student became eligible to get the allowance; and

 (b) if subregulation 12MA (2) applies — the day when the event happened; and

 (c) if subregulation 12MA (4) applies — the day when the parent or family member enrolled in the course; and

 (d) if subregulation 12MA (5) applies — the relevant day.

 (2) In this regulation:

relevant day has the meaning given by subregulation 12MA (7).

12N What is not the actual means of a designated parent

 (1) For subregulations 12M (1) and (2), the actual means of a designated parent for the relevant financial year does not include:

 (a) expenditure or savings from any income assistance to the parent or a member of his or her family (a ‘family member’) in the relevant financial year; or

 (b) expenditure by the parent or his or her spouse for the maintenance 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

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the boarding allowance; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the secondary student’s after tax income compensation; 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 or savings from any arm’s length loan made to the parent or a family member in the relevant financial year; or

 (g) expenditure to repay the principal or interest in relation to any loan made to the parent or a family member in the relevant financial year that is not an arm’s length loan; or

 (h) expenditure, not otherwise mentioned in this subregulation, that equates to the amount of any reduction in the relevant financial year of liquid assets of the parent or a family member at the beginning of that year; or

 (i) expenditure, and any increase in savings, of the parent or a family member from the proceeds of any liquidation in the relevant financial year of assets of the parent or family member at the beginning of that year; or

 (j) expenditure or savings from the amount of any windfall gain in the relevant financial year of the parent or a family member that is not a gift to the parent or family member; or

 (k) expenditure (except expenditure already mentioned in this subregulation) from the financial resources of any business of the parent or a family member that equates to the amount that was or will be deductible under the Income Tax Assessment Act 1936 or Income Tax Assessment Act 1997 because the expenditure was or will be necessarily incurred in carrying on the business; or

 (l) expenditure or savings of not more than $6,000 from any pay and allowances that are mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936, or item 1.4 of section 51-5 of the Income Tax Assessment Act 1997, and paid to the parent or family member in the relevant financial year; or

 (m) expenditure or savings of not more than $6,000 from any income in the relevant financial year from independent employment by each family member described in paragraph (d) of the definition of family in subregulation (5); or

 (n) expenditure or savings from any part of a lump sum compensation payment made to the parent or a family member on which tax is not payable under the Income Tax Assessment Act 1936 or Income Tax Assessment Act 1997.

 (1A) However, paragraph (1) (k) does not apply to:

 (a) expenditure by the designated parent or a family member that equates to the total amount of any losses from the business that are carried forward from the preceding financial year; and

 (b) expenditure by the parent or a family member that equates to the amount of the contribution to a superannuation fund in relation to the business that exceeds:

 (i) for a person employed in the business — the minimum contribution for the employee under the Superannuation Guarantee (Administration) Act 1992; or

 (ii) for the parent or a family member engaged in the business other than as an employee — the lesser of $3,000 and the total amount of the contributions for the parent and each family member for the relevant financial year.

 (1B) For subparagraph (1) (d) (ii), the after tax income compensation of a secondary student is calculated using the following formula:

where:

AT1 is the amount of the after tax income of the student’s designated parent calculated using the following formula:

[(PI + DC) – (T + M)] + FP + FTI

where:

PI is the minimum income of the parent at which on a notional application of the parental income test the student becomes ineligible to get the away-from-home living allowance.

DC is the total amount of any deductions for children of the parent that would be applicable under regulation 87.

T is the amount of income tax, before any rebates, without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates Act 1986, that would be notionally payable by the parent for the relevant financial year if his or her income were PI + DC.

M is the amount of Medicare levy that would be notionally payable by the parent for the relevant financial year if his or her income were PI + DC if:

 (a) each child of the parent mentioned in paragraph (b) or (d) of the definition of family in subregulation (5) who were under 25 had no separate net income within the meaning of subsection 159J (6) of the Income Tax Assessment  Act 1936; and

 (b) each child of the parent mentioned in paragraph (c) of that definition also had no separate net income.

FP is 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 for children of the parent who have not turned 16.

FTI is:

 (a) for an application for AUSTUDY for 1998 to which subregulation 12M (1) applies — 20% of the amount calculated under subsection 20C (1) of the Income Tax Rates Act 1986; and

 (b) for any other application for AUSTUDY — 20% of the amount calculated under subsection 20C (2) of that Act;

without regard to section 20K of that Act; and

AT2 is the notional amount of AT1 calculated as if the student were getting the standard living allowance; and

N is the number of secondary students in the parent’s family who qualify for the away-from-home living allowance.

 (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 less than 16 years 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.

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.

relevant financial year means:

 (a) in relation to subregulation 12M (1) — the last financial year ending before the year of study; and

 (b) in relation to subregulation 12M (2) — the financial year ending in the year of study.

Subdivision C Actual means test: designated spouse

12Q To whom this Subdivision applies

  This Subdivision applies to a student who:

 (a) has a spouse who is a designated spouse, within the meaning of regulation 12R; and

 (b) qualifies for the independent living allowance under regulation 67.

12R Who is a designated spouse?

 (1) A spouse is a designated spouse if subregulation 93 (2) applies to the spouse and he or she:

 (a) within 10 years before 1 January in the year of study, first entered Australia under 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 (the value of which is $2,500 or more) in assets outside Australia and its external territories; or

 (c) in the last financial year ending before the year of study, had an interest in a proprietary company, an unlisted public company or a trust; or

 (d) in the last financial year ending before the year of study, derived income of $2,500 or more from a source outside Australia and its external territories, except Norfolk Island, that does not consist only of income from a pension or similar payment that was income of the spouse for Part 6 of Chapter 4; or

 (e) in the last financial year ending before the year of study, derived income from a salary or wage and has claimed, or will claim, a tax deduction for a business loss (whether for that year or a previous year) that does not consist only of a net passive business loss; or

 (f) in the last financial year ending before the year of study, was a member of a partnership; or

 (g) in the last financial year ending before the year of study, was a self-employed person (except a self-employed person who was wholly or mainly engaged in a primary production business owned by the person).

 (2) In paragraph (1) (g):

self-employed person means a person who works for gain or reward other than under a contract of employment or apprenticeship, whether or not the person employs 1 or more other persons.

12S Students not entitled to living allowance

 (1) A student who has a designated spouse is not entitled to living allowance in a year of study unless the details of the actual means of the spouse under subregulation 12T (1) or (2) for the relevant financial year supplied by or for the student in relation to the student’s application for AUSTUDY are materially correct.

 (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).

12T Actual means: designated spouses

 (1) The actual means of a designated spouse for the year of study is taken to be the amount that equates to total expenditure by, and savings of, the spouse and each member of his or her family (a ‘family member’) in the last financial year ending before the year of study.

 (2) However, if regulation 12TA applies, the actual means of a designated spouse for the year of study is taken to be the amount that equates to the total expenditure by, and savings of, the spouse and each family member in the financial year ending in the year of study.

 (3) 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.

 (4) In this regulation:

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

12TA AMT concession: designated spouse

 (1) This regulation applies if:

 (a) the amount mentioned in subregulation 12T (2) is, or is likely to be, substantially less than the amount mentioned in subregulation 12T (1); and

 (b) subregulation (2), (4) or (5) applies.

 (2) This subregulation applies if:

 (a) paragraph (1) (a) applies because of an event that is beyond the control of the spouse or family member; and

 (b) the amount mentioned in subregulation 12T (2) is likely to continue to be the amount that equates to the total expenditure by, and savings of, the spouse and each family member (the family’s means) for at least 2 years after the later of:

 (i) the day when the event happened; and

 (ii) 1 January in the year of study.

 (3) For paragraph (2) (a), an expected decrease in the profitability of a business in which the spouse or a family member has an interest is not ordinarily to be taken to be an event that is beyond the control of the spouse or family member.

 (4) This subregulation applies if:

 (a) paragraph (1) (a) applies because the spouse or a family member is enrolled in a course as a full‑time student for the year of study; and

 (b) the amount mentioned in subregulation 12T (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the day when the spouse or family member enrolled in the course; and

 (ii) 1 January in the year of study.

 (5) This subregulation applies if:

 (a) paragraph (1) (a) applies because:

 (i) the spouse had any interest of the kind mentioned in paragraph 12R (1) (c) in the last financial year ending before the year of study, but no longer has any such interest; or

 (ii) the spouse derived income mentioned in paragraph 12R (1) (d) in that year, but is no longer deriving that income; or

 (iii) subregulation (6) applies to the spouse; or  

 (iv) the spouse was a member of any partnership in the year, but is no longer a member of any such partnership; or

 (v) the spouse was a self‑employed person within the meaning of paragraph 12R (1) (g) in the year, but is no longer a self‑employed person; and

 (b) the amount mentioned in subregulation 12T (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the relevant day; and

 (ii) 1 January in the year of study.

 (6) This subregulation applies to a spouse if the spouse derived income mentioned in paragraph 12R (1) (e) in the last financial year ending before the year of study and has claimed, or will claim, in that year a tax deduction mentioned in that paragraph for that year or a previous year, but:

 (a) is no longer deriving that income; or

 (b) has not claimed, or will not claim, a tax deduction of that kind in the financial year ending in the year of study for that year or a previous year.

 (7) In this regulation:

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

relevant day means the day, or the last of the days, when:

 (a) if subparagraph 12TA (5) (a) (i), applies — the spouse ceased to have the interest; and

 (b) if subparagraph 12TA (5) (a) (ii) applies — the spouse ceased to derive the income; and

 (c) if subparagraph 12TA (5) (a) (iv) applies — the spouse ceased to be a member of the partnership; and

 (d) if subparagraph 12TA (5) (a) (v) applies — the spouse ceased to be a self-employed person; and

 (e) if paragraph 12TA (6) (a) applies — the spouse ceased to derive the income; and

 (f) if paragraph 12TA (6) (b) applies — the financial year ending in the year of study began.

12TB How does concession affect living allowance?

 (1) A student who is eligible to get living allowance, or increased living allowance, because of regulation 12TA, can get the allowance or increased allowance from the last of:

 (a) the day when the student became eligible to get the allowance; and

 (b) if subregulation 12TA (2) applies — the day when the event happened; and

 (c) if subregulation 12TA (4) applies — the day when the spouse or family member enrolled in the course; and

 (d) if subregulation 12TA (5) applies — the relevant day.

 (2) In this regulation:

relevant day has the meaning given by subregulation 12TA (7).

12U What is not the actual means of a designated spouse

 (1) For subregulations 12T (1) and (2), the actual means of a designated spouse of a student for the relevant financial year does not include:

 (a) expenditure or savings from any income assistance to the spouse or a member of his or her family (a ‘family member’) in the relevant financial year; or

 (b) expenditure by the spouse or student for the maintenance of:

 (i) a child of the spouse or 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 spouse or student; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the boarding allowance; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the secondary student’s after tax income compensation; 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 or savings from any arm’s length loan made to the spouse or a family member in the relevant financial year; or

 (g) expenditure to repay the principal or interest in relation to any loan made to the spouse or a family member in the relevant financial year that is not an arm’s length loan; or

 (h) expenditure, not otherwise mentioned in this sub-regulation, that equates to the amount of any reduction in the relevant financial year of liquid assets of the spouse or a family member at the beginning of that year; or

 (i) expenditure, and any increase in savings, of the spouse or a family member from the proceeds of any liquidation in the relevant financial year of assets of the spouse or family member at the beginning of that year; or

 (j) expenditure or savings from the amount of any windfall gain in the relevant financial year of the spouse or a family member that is not a gift to the spouse or family member; or

 (k) expenditure (except expenditure already mentioned in this subregulation) from the financial resources of any business of the spouse or a family member that equates to the amount that was or will be deductible under the Income Tax Assessment Act 1936 or Income Tax Assessment Act 1997 because the expenditure was or will be necessarily incurred in carrying on the business; or

 (l) expenditure or savings of not more than $6,000 from any pay and allowances that are mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936, or item 1.4 of section 51-5 of the Income Tax Assessment Act 1997, and paid to the spouse or a family member in the relevant financial year; or

 (m) expenditure or savings of not more than $6,000 from any income in the relevant financial year from independent employment by each family member described in paragraph (a) or (c) of the definition of family in subregulation (5); or

 (n) expenditure or savings from any part of a lump sum compensation payment made to the spouse or a family member on which tax is not payable under the Income Tax Assessment  Act 1936 or Income Tax Assessment Act 1997.

 (1A) However, paragraph (1) (k) does not apply to:

 (a) expenditure by the spouse or a family member that equates to the total amount of any losses from the business that are carried forward from the preceding financial year; and

 (b) expenditure by the spouse or a family member that equates to the amount of the contribution to a superannuation fund in relation to the business that exceeds:

 (i) for a person employed in the business — the amount of the minimum contribution for the employee under the Superannuation Guarantee (Administration) Act 1992; or

 (ii) for the spouse or a family member engaged in the business other than as an employee — the lesser of $3,000 and the total amount of the contributions for the spouse and each family member for the relevant financial year.

 (1B) For subparagraph (1) (d) (ii), the after tax income compensation of a secondary student is calculated using the following formula:

where:

AT1 is the amount of the after tax income of the student’s designated spouse calculated using the following formula:

where:

PI is the minimum income of the spouse at which on a notional application of the spouse income test the student becomes ineligible to get the away-from-home living allowance.

DC is the total amount of any deductions for children of the spouse that would be applicable under subregulation 94 (2A).

T is the amount of income tax, before any rebates, without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates Act 1986, that would be notionally payable by the spouse for the relevant financial year if his or her income were PI + DC.

M is the amount of Medicare levy that would be notionally payable by the spouse for the relevant financial year if his or her income were PI + DC if:

 (a) each child of the spouse mentioned in paragraph (c) of the definition of family in subregulation (5) who were under 25 had no separate net income within the meaning of subsection 159J (6) of the Income Tax Assessment Act 1936; and

 (b) each child of the spouse mentioned in paragraph (b) of that definition also had no separate net income.

FP is 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 for children of the spouse who have not turned 16.

FTI is:

 (a) for an application for AUSTUDY for 1998 to which subregulation 12T (1) applies — 20% of the amount calculated under subsection 20C (1) of the Income Tax Rates Act 1986; and

 (b) for any other application for AUSTUDY — 20% of the amount calculated under subsection 20C (2) of that Act;

 without regard to section 20K of that Act; and

AT2 is the notional amount of AT1 calculated as if the student were getting the standard living allowance; and

N is the number of secondary students in the spouse’s family who qualify for the away-from-home living allowance.

 (5) In this regulation:

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

 (a) the student;

 (b) a person aged less than 16 years 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 (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.

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.

relevant financial year means:

 (a) in relation to subregulation 12T (1) — the last financial year ending before the year of study; and

 (b) in relation to subregulation 12T (2) — the financial year ending in the year of study.

Subdivision D Actual means test: designated student with a spouse

12W To whom this Subdivision applies

  This Subdivision applies to a student who:

 (a) is a designated student within the meaning of regulation 12X; and

 (b) has a spouse (other than a spouse who is a designated spouse within the meaning of regulation 12R); and

 (c) qualifies for the independent living allowance under regulation 67.

12X Who is a designated student

 (1) A student is a designated student if the student:

 (a) within 10 years before 1 January in the year of study, first entered Australia under 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 (the value of which is $2,500 or more) in assets outside Australia and its external territories; or

 (c) in the last financial year ending before the year of study, had an interest in a proprietary company, an unlisted public company or a trust; or

 (d) in the last financial year ending before the year of study, derived income of $2,500 or more from a source outside Australia and its external territories, except Norfolk Island, that does not consist only of income from a pension or similar payment that was income of the student for Part 4 of Chapter  4; or

 (e) in the last financial year ending before the year of study, derived income from a salary or wage and has claimed, or will claim, a tax deduction for a business loss (whether for that year or a previous year) that does not consist only of a net passive business loss; or

 (f) in the last financial year ending before the year of study, was a member of a partnership; or

 (g) in the last financial year ending before the year of study, was a self-employed person (except a self-employed person who was wholly or mainly engaged in a primary production business owned by the person).

 (2) In paragraph (1) (g):

self-employed person means a person who works for gain or reward other than under a contract of employment or apprenticeship, whether or not the person employs 1 or more other persons.

12Y Students not entitled to living allowance

 (1) A designated student who has a spouse is not entitled to living allowance in a year of study unless the details of the actual means of the spouse under subregulation 12Z (1) or (2) for the relevant financial year supplied by or for the student in relation to the student’s application for AUSTUDY are materially correct.

 (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).

12Z Actual means: designated students with a spouse

 (1) The actual means of the spouse of a designated student for the year of study is taken to be the amount that equates to total expenditure by, and savings of, the spouse and each member of his or her family (a ‘family member’) in the last financial year ending before the year of study.

 (2) However, if regulation 12ZAA applies, the actual means of the spouse of a designated student for the year of study is taken to be the amount that equates to the total expenditure by, and savings of, the spouse and each family member in the financial year ending in the year of study.

 (3) 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.

 (4) In this regulation:

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

12ZAA AMT concession: designated student with a spouse

 (1) This regulation applies if:

 (a) the amount mentioned in subregulation 12Z (2) is, or is likely to be, substantially less than the amount mentioned in subregulation 12Z (1); and

 (b) subregulation (2), (4) or (5) applies.

 (2) This subregulation applies if:

 (a) paragraph (1) (a) applies because of an event that is beyond the control of the spouse or family member; and

 (b) the amount mentioned in subregulation 12Z (2) is likely to continue to be the amount that equates to the total expenditure by, and savings of, the spouse and each family member (the family’s means) for at least 2 years after the later of:

 (i) the day when the event happened; and

 (ii) 1 January in the year of study.

 (3) For paragraph (2) (a), an expected decrease in the profitability of a business in which the spouse or a family member has an interest is not ordinarily to be taken to be an event that is beyond the control of the spouse or family member.

 (4) This subregulation applies if:

 (a) paragraph (1) (a) applies because the spouse or a family member is enrolled in a course as a full‑time student for the year of study; and

 (b) the amount mentioned in subregulation 12Z (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the day when the spouse or family member enrolled in the course; and

 (ii) 1 January in the year of study.

 (5) This subregulation applies if:

 (a) paragraph (1) (a) applies because:

 (i) the spouse had any interest of the kind mentioned in paragraph 12X (1) (c) in the last financial year ending before the year of study, but no longer has any such interest; or

 (ii) the spouse derived income mentioned in paragraph 12X (1) (d) in that year, but is no longer deriving that income; or

 (iii) subregulation (6) applies to the spouse; or

 (iv) the spouse was a member of any partnership in the year, but is no longer a member of any such partnership; or

 (v) the spouse was a self‑employed person within the meaning of paragraph 12X (1) (g) in the year, but is no longer a self‑employed person; and

 (b) the amount mentioned in subregulation 12Z (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the relevant day; and

 (ii) 1 January in the year of study.

 (6) This subregulation applies to a spouse if the spouse derived income mentioned in paragraph 12X (1) (e) in the last financial year ending before the year of study and has claimed, or will claim, in that year a tax deduction mentioned in that paragraph for that year or a previous year, but:

 (a) is no longer deriving that income; or

 (b) has not claimed, or will not claim, a tax deduction of that kind in the financial year ending in the year of study for that year or a previous year.

 (7) In this regulation:

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

relevant day means the day, or the last of the days, when:

 (a) if subparagraph 12ZAA (5) (a) (i), applies — the spouse ceased to have the interest; and

 (b) if subparagraph 12ZAA (5) (a) (ii) applies — the spouse ceased to derive the income; and

 (c) if subparagraph 12ZAA (5) (a) (iv) applies — the spouse ceased to be a member of the partnership; and

 (d) if subparagraph 12ZAA (5) (a) (v) applies — the spouse ceased to be a self-employed person; and

 (e) if paragraph 12ZAA (6) (a) applies — the spouse ceased to derive the income; and

 (f) if paragraph 12ZAA (6) (b) applies — the financial year ending in the year of study began.

12ZA What is not the actual means of the spouse of a designated student

 (1) For subregulations 12Z (1) and (2), the actual means of a spouse of a designated student for the relevant financial year does not include:

 (a) expenditure or savings from any income assistance to the spouse or a member of his or her family (a ‘family member’) in the relevant financial year; or

 (b) expenditure by the spouse or student for the maintenance of:

 (i) a child of the spouse or 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 spouse or student; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the boarding allowance; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the secondary student’s after tax income compensation; 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 or savings from any arm’s length loan made to the spouse or a family member in the relevant financial year; or

 (g) expenditure to repay the principal or interest in relation to any loan made to the spouse or a family member in the relevant financial year that is not an arm’s length loan; or

 (h) expenditure, not otherwise mentioned in this subregulation, that equates to the amount of any reduction in the relevant financial year of liquid assets of the spouse or a family member at the beginning of that year; or

 (i) expenditure, and any increase in savings, of the spouse or a family member from the proceeds of any liquidation in the relevant financial year of assets of the spouse or family member at the beginning of that year; or

 (j) expenditure or savings from the amount of any windfall gain in the relevant financial year of the spouse or a family member that is not a gift to the spouse or family member; or

 (k) expenditure (except expenditure already mentioned in this subregulation) from the financial resources of any business of the spouse or a family member that equates to the amount that was or will be deductible under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 because the expenditure was or will be necessarily incurred in carrying on the business; or

 (l) expenditure or savings of not more than $6,000 from any pay and allowances that are mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936, or item 1.4 of section 51-5 of the Income Tax Assessment Act 1997, and paid to the spouse or a family member in the relevant financial year; or

 (m) expenditure or savings of not more than $6,000 from any income in the relevant financial year from independent employment by each family member described in paragraph (a) or (c) of the definition of family in subregulation (8); or

 (n) expenditure or savings from any part of a lump sum compensation payment made to the spouse or a family member on which tax is not payable under the Income Tax Assessment Act 1936 or Income Tax Assessment Act 1997.

 (2) However, paragraph (1) (k) does not apply to:

 (a) expenditure by the spouse or a family member that equates to the total amount of any losses from the business that are carried forward from the preceding financial year; and

 (b) expenditure by the spouse or a family member that equates to the amount of the contribution to a superannuation fund in relation to the business that exceeds:

 (i) for a person employed in the business — the minimum contribution for the employee under the Superannuation Guarantee (Administration) Act 1992; or

 (ii) for the spouse or a family member engaged in the business other than as an employee — the lesser of $3,000 and the total amount of the contributions for the spouse and each family member for the relevant financial year.

 (3) For subparagraph (1) (d)  (ii), the after tax income compensation of a secondary student is calculated using the following formula:

  where:

AT1 is the amount of the after tax income of the designated student’s spouse calculated using the following formula:

where:

PI is the minimum income of the spouse at which on a notional application of the spouse income test the student becomes ineligible to get the away-from-home living allowance.

DC is the total amount of any deductions for children of the spouse that would be applicable under subregulation 94 (2A).

T is the amount of income tax, before any rebates, without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates Act 1986, that would be notionally payable by the spouse for the relevant financial year if his or her income were PI + DC.

M is the amount of Medicare levy that would be notionally payable by the spouse for the relevant financial year if his or her income were PI + DC if:

 (a) each child of the spouse mentioned in paragraph (c) of the definition of family in subregulation (8) who were under 25 had no separate net income within the meaning of subsection 159J (6) of the Income Tax Assessment Act 1936; and

 (b) each child of the spouse mentioned in paragraph (b) of that definition also had no separate net income.

FP is 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 for children of the spouse who have not turned 16.

FTI is:

 (a) for an application for AUSTUDY for 1998 to which sub-regulation 12Z (1) applies — 20% of the amount calculated under subsection 20C (1) of the Income Tax Rates Act 1986; and

 (b) for any other application for AUSTUDY — 20% of the amount calculated under subsection 20C (2) of that Act;

without regard to section 20K of that Act; and

AT2 is the notional amount AT1 calculated as if the student were getting the standard living allowance; and

N is the number of secondary students in the spouse’s family who qualify for the away-from-home living allowance.

 (8) In this regulation:

family, in relation to the spouse of a designated student, means only the following persons:

 (a) the designated student;

 (b) a person aged less than 16 years who:

 (i) is a natural or adopted child of the spouse or student; or

 (ii) is wholly or substantially dependent on the spouse or student;

 (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.

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.

relevant financial year means:

 (a) in relation to subregulation 12Z (1) — the last financial year ending before the year of study; and

 (b) in relation to subregulation 12Z (2) — the financial year ending in the year of study.

12ZAB How does concession affect living allowance?

 (1) A student who is eligible to get living allowance, or increased living allowance, because of regulation 12ZAA, can get the allowance or increased allowance from the last of:

 (a) the day when the student became eligible to get the allowance; and

 (b) if subregulation 12ZAA (2) applies — the day when the event happened; and

 (c) if subregulation 12ZAA (4) applies — the day when the spouse or family member enrolled in the course; and

 (d) if subregulation 12ZAA (5) applies — the relevant day.

 (2) In this regulation:

relevant day has the meaning given by subregulation 12ZAA (7).

Subdivision E Actual means test: designated student without a spouse

12ZC To whom this Subdivision applies

  This Subdivision applies to a student who:

 (a) is a designated student within the meaning of regulation 12X; and

 (b) does not have a spouse; and

 (c) qualifies for the independent living allowance under regulation 67.

12ZD Students not entitled to living allowance

 (1) A designated student is not entitled to living allowance in a year of study unless the details of the actual means of the student under subregulation 12ZE (1) or (2) for the relevant financial year supplied by or for the student in relation to the student’s application for AUSTUDY are materially correct.

 (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).

12ZE Actual means: designated students without a spouse

 (1) The actual means of a designated student for the year of study is taken to be the amount that equates to total expenditure by, and savings of, the student and each member of his or her family (a ‘family member’) in the last financial year ending before the year of study.

 (2) However, if regulation 12ZE applies, the actual means of a designated student for the year of study is taken to be the amount that equates to the total expenditure by, and savings of, the student and each family member in the financial year ending in the year of study.

 (3) 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.

 (4) In this regulation:

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

12ZEA AMT concession: designated students without a spouse

 (1) This regulation applies if:

 (a) the amount mentioned in subregulation 12ZE (2) is, or is likely to be, substantially less than the amount mentioned in subregulation 12ZE (1); and

 (b) subregulation (2), (3) or (4) applies.

 (2) This subregulation applies if:

 (a) paragraph (1) (a) applies because of an event that is beyond the control of the student or family member; and

 (b) the amount mentioned in subregulation 12ZE (2) is likely to continue to be the amount that equates to the total expenditure by, and savings of, the student and each family member (the family’s means) for at least 2 years after the later of:

 (i) the day when the event happened; and

 (ii) 1 January in the year of study.

 (3) For paragraph (2) (a), an expected decrease in the profitability of a business in which the student or a family member has an interest is not ordinarily to be taken to be an event that is beyond the control of the student or family member.

 (4) This subregulation applies if:

 (a) paragraph (1) (a) applies because the student or a family member is enrolled in a course as a full‑time student for the year of study; and

 (b) the amount mentioned in subregulation 12ZE (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the day when the student or family member enrolled in the course; and

 (ii) 1 January in the year of study.

 (5) This subregulation applies if:

 (a) paragraph (1) (a) applies because:

 (i) the student had any interest of the kind mentioned in paragraph 12X (1) (c) in the last financial year ending before the year of study, but no longer has any such interest; or

 (ii) the student derived income mentioned in paragraph 12X (1) (d) in that year, but is no longer deriving that income; or

 (iii) subregulation (6) applies to the student; or

 (iv) the student was a member of any partnership in the year, but is no longer a member of any such partnership; or

 (v) the student was a self‑employed person within the meaning of paragraph 12X (1) (g) in the year, but is no longer a self‑employed person; and

 (b) the amount mentioned in subregulation 12ZE (2) is likely to continue to be the family’s means for at least 2 years after the later of:

 (i) the relevant day; and

 (ii) 1 January in the year of study.

 (6) This subregulation applies to a student if the student derived income mentioned in paragraph 12X (1) (e) in the last financial year ending before the year of study and has claimed, or will claim, in that year a tax deduction mentioned in that paragraph for that year or a previous year, but:

 (a) is no longer deriving that income; or

 (b) has not claimed, or will not claim, a tax deduction of that kind in the financial year ending in the year of study for that year or a previous year.

 (7) In this regulation:

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

relevant day means the day, or the last of the days, when:

 (a) if subparagraph 12ZEA (5) (a) (i), applies — the student ceased to have the interest; and

 (b) if subparagraph 12ZEA (5) (a) (ii) applies — the student ceased to derive the income; and

 (c) if subparagraph 12ZEA (5) (a) (iv) applies — the student ceased to be a member of the partnership; and

 (d) if subparagraph 12ZEA (5) (a) (v) applies — the student ceased to be a self-employed person; and

 (e) if paragraph 12ZEA (6) (a) applies — the student ceased to derive the income; and

 (f) if paragraph 12ZEA (6) (b) applies — the financial year ending in the year of study began.

12ZEB How does concession affect living allowance?

 (1) A student who is eligible to get living allowance, or increased living allowance, because of regulation 12ZEA, can get the allowance or increased allowance from the last of:

 (a) the day when the student became eligible to get the allowance; and

 (b) if subregulation 12ZEA (2) applies — the day when the event happened; and             

 (c) if subregulation 12ZEA (4) applies — the day when the student or family member enrolled in the course; and

 (d) if subregulation 12ZEA (5) applies — the relevant day.

 (2) In this regulation:

relevant day has the meaning given by subregulation 12ZEA (7).

12ZF What is not the actual means of a designated student

 (1) For subregulations 12ZE (1) and (2), the actual means of a designated student for the relevant financial year does not include:

 (a) expenditure or savings from income assistance to the student or a member of his or her family (a ‘family member’) in the relevant financial year; or

 (b) expenditure by the student for the maintenance of:

 (i) a child of the student if the student does not have responsibility for the day-to-day care, welfare and development of the child; or

 (ii) a former spouse of the student; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the boarding allowance; or

 (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:

 (i) the amount of the expenditure; and

 (ii) $5,274 less the amount of the secondary student’s after tax income compensation; 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 or savings from an arm’s length loan made to the student or a family member in the relevant financial year; or

 (g) expenditure to repay the principal or interest in relation to any loan made to the student or a family member in the relevant financial year that is not an arm’s length loan; or

 (h) expenditure, not otherwise mentioned in this subregulation, that equates to the amount of a reduction in the relevant financial year of the liquid assets of the student or a family member at the beginning of that year; or

 (i) expenditure, and any increase in savings, of the student or a family member from the proceeds of a liquidation in the relevant financial year of assets of the student or family member at the beginning of that year; or

 (j) expenditure or savings from the amount of a windfall gain in the relevant financial year of the student or a family member that is not a gift to the student or family member; or

 (k) expenditure (except expenditure already mentioned in this subregulation) from the financial resources of a business of the student or a family member that equates to the amount that was or will be deductible under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 because the expenditure was or will be necessarily incurred in carrying on the business; or

 (l) expenditure or savings of not more than $6,000 from any pay and allowances that are mentioned in paragraph 23 (s) of the Income Tax Assessment Act 1936, or item 1.4 of section 51-5 of the Income Tax Assessment Act 1997, and paid to the student or a family member in the relevant financial year; or

 (m) expenditure or savings of not more than $6,000 from any income in the relevant financial year from independent employment by each family member described in paragraph (b) of the definition of family in subregulation (8); or

 (n) expenditure or savings from any part of a lump sum compensation payment made to the student or a family member on which tax is not payable under the Income Tax Assessment Act 1936 or Income Tax Assessment Act 1997.

 (2) However, paragraph (1) (k) does not apply to:

 (a) expenditure by the student or a family member that equates to the total amount of any losses from the business that are carried forward from the preceding financial year; and

 (b) expenditure by the student or a family member that equates to the amount of the contribution to a superannuation fund in relation to the business that exceeds:

 (i) for a person employed in the business — the minimum contribution for the employee under the Superannuation Guarantee (Administration) Act 1992; or

 (ii) for the student or a family member engaged in the business other than as an employee — the lesser of $3,000 and the total amount of the contributions for the student and each family member for the relevant financial year.

 (3) For subparagraph (1) (d) (ii), the after tax income compensation of a secondary student is calculated using the following formula:

  where:

AT1 is the amount of the after tax income of the designated student calculated using the following formula:

where:

PI is the minimum income of the student at which on a notional application of the student income test the student becomes ineligible to get the away-from-home living allowance.

DC is the total amount of any deductions for children of the student that would be applicable under regulation 87.

T is the amount of income tax, before any rebates, without regard to any increase in the tax free threshold because of section 20C or 20D of the Income Tax Rates Act 1986, that would be notionally payable by the student for the relevant financial year if his or her income were PI + DC.

M is the amount of Medicare levy that would be notionally payable by the student for the relevant financial year if his or her income were PI + DC if:

 (a) each child of the spouse mentioned in paragraph (a) of the definition of family in subregulation (8) had no separate net income within the meaning of subsection 159J (6) of the Income Tax Assessment Act 1936; and

 (b) each child of the spouse mentioned in paragraph (b) of that definition who were under 25 also had no separate net income.

FP is 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 for children of the student who have not turned 16.

FTI is:

 (a) for an application for AUSTUDY for 1998 to which subregulation 12ZE (1) applies — 20% of the amount calculated under subsection 20C (1) of the Income Tax Rates Act 1986; and

 (b) for any other application for AUSTUDY — 20% of the amount calculated under subsection 20C (2) of that Act;

without regard to section 20K of that Act; and

AT2 is the notional amount of AT1 calculated as if the student were getting the standard living allowance; and

N is the number of secondary students in the student’s family who qualify for the away-from-home living allowance.

 (8) In this regulation:

family, in relation to a designated student, means only the following persons:

 (a) a person aged less than 16 years who:

 (i) is a natural or adopted child of the student; or

 (ii) is wholly or substantially dependent on the student;

 (b) a person of the kind described in subparagraph (a) (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.

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.

relevant financial year means:

 (a) in relation to subregulation 12ZE (1) — the last financial year ending before the year of study; and

 (b) in regulation to subregulation 12ZE (2) — the financial year ending in the year of study.

Division 2 Assets test

13 Do assets affect AUSTUDY?

 (1) A student qualifying for a kind of living allowance listed in the following table cannot get AUSTUDY if the value of assets as described in regulations 14-19 (inclusive) is more than the maximum value set out opposite the kind of living allowance in the table:

 (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).

 (2) The assets test does not apply if the student is not independent under regulation 67 and is not living with a natural or adoptive parent and:

 (a) the student is in the guardianship, care or custody of a Court, Minister or Department; or

 (b) there is a current direction from a Court, Minister or Department placing the student in the guardianship, care or custody of someone who is not the student’s natural or adoptive parent; or

 (c) the student stopped being in a situation described in paragraph (a) or (b) only because of his or her age.4

 (3) The Court, Minister or Department referred to in subregulation (2) can be from the Commonwealth or a State or Territory.

 (4) The assets test does not apply to a student who:

 (a) if the assets test were applied, would not qualify for a kind of living allowance listed in subregulation (1); and

 (b) has a parent or spouse who, when the student applies for AUSTUDY for 1994, holds a Health Care Card issued by the Department of Social Security for the purposes of the Health Insurance Act 1973; and

 (c) despite paragraph (a), gets AUSTUDY in 1994;

until that Health Care Card ceases to be in force.

14 What is included in assets?

 (1) Assets are any kind of property, whether in Australia or elsewhere, unless they are excluded by regulations 15-18.

 (2) If a person disposed of an asset in the last 5 years for unreasonably low or no value:

 (a) it is included in the person’s assets; and

 (b) its value is taken as its value when the person disposed of it less what he or she got for it;

but this rule does not apply to assets disposed of before 23 August 1988.

 (3) If a person reduces the value of an asset directly or indirectly, the value of the asset is taken to be its value before the person acted (except where the person reduces the value of a business by reducing the extent to which he or she works in the business).

 (4) A person’s assets include any money owed to the person, but do not include any interest on the money that is not yet due.

 (5) A person’s assets include:

 (a) any benefit that the person is entitled to directly or indirectly out of the assets of a trust; and

 (b) any asset of a trust that the person can deal with directly or indirectly to his or her advantage; and

 (c) any interest in the assets of a trust that has been assigned to someone else but the person can directly or indirectly control.

15 What is excluded from assets? (a) principal home

 (1) The principal home includes:

 (a) any land around the home used primarily for private and domestic purposes if the land and the ground floor of the home are 2 hectares or less; or

 (b) a garage or storeroom of a flat or home unit that is used primarily for private or domestic purposes.

 (2) Any right or interest in a person’s principal home is not included in the person’s assets.

 (3) No account is taken of an amount from the sale of a person’s principal home that he or she is likely to use within 12 months of the sale to buy another principal home.

16 What is excluded from assets? (b) items for use by disabled people

  If a person, or a member of his or her family, is disabled, the person’s assets do not include:

 (a) any personal property designed for use by a disabled person; and

 (b) any modification to personal property to enable it to be used by a disabled person.

17 What is excluded from assets? (c) debts on assets

  The value of a person’s asset is reduced by the remaining amount of the debt if the person went into debt to obtain the asset or to make improvements to it.

18 What is excluded from assets? (d) unreceivable assets

  Any asset that a person is entitled to but cannot obtain through circumstances beyond the person’s control is not included in that person’s assets.

18A What is excluded from assets: (e) farm assets

 (1) Subregulation (2) applies to a person who has farm assets in an exceptional circumstances area.

 (2) The person’s assets do not include the farm assets until the end of the year in which:

 (a) the exceptional circumstances recovery period (if any) for the area ends; or

 (b) if there is no exceptional circumstances recovery period for the area — the area ceases to be an exceptional circumstances area.

 (3) In this regulation:

exceptional circumstances area means an area stated in writing by the Minister for Primary Industries and Energy to be an exceptional circumstances area.

exceptional circumstances recovery period, for an exceptional circumstances area, means the period (if any) stated in writing by the Minister of Primary Industries and Energy to be an exceptional circumstances recovery period for the area.

farm assets includes:

 (a) land, buildings, plant, equipment and vehicles used primarily for farming; and

 (b) crops and livestock.

19 How are business assets treated?

 (1) In this regulation:

business includes:

 (a) the carrying on of primary production; and

 (b) the provision of professional services.

 (2) Fifty per cent of a person’s interest in the value of a business is disregarded if the person, or his or her spouse, is wholly or mainly engaged in the business and the business:

 (a) is owned by the person; or

 (b) is a partnership in which the person is a partner; or

 (c) is a company in which the person has shares; or

 (d) is a trust.

 (3) The discounting by 50% in subregulation (2) does not apply to:

 (a) cash on hand, bank deposits, bank bonds, or similar liquid assets; or

 (b) shares in companies, or rights in relation to shares; or

 (c) rights to deal in real or personal property1,2; or

 (d) assets leased out by the business, unless leasing is a major activity of the business; or

 (e) assets used for private or domestic purposes by the owners of the business.

20 Evidence of value of assets

 (1) A statement in writing about the value of an asset from the Australian Valuation Office is prima facie evidence of its value.

 (2) The statement is taken to be signed by the person shown on it unless it is proved otherwise.

Division 3 Students who are excluded from getting AUSTUDY

21 Excluded: (a) students getting other Commonwealth assistance

 (1) A student cannot get AUSTUDY if he or she gets a benefit for education or vocational training from the Commonwealth or a Commonwealth authority.

 (2) A student can still get AUSTUDY even if he or she gets:

 (a) a benefit from an educational institution; or

 (b) a benefit as a child of a victim of a natural disaster or an industrial accident; or

 (c) a service provided by the Commonwealth Rehabilitation Service.

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

 (1) A student cannot get AUSTUDY living allowance if he or she gets:

 (a) a payment listed in Group A, AA or B in Schedule 11; or

 (b) benefit PP (partnered) under Part 2.10 of the Social Security Act 1991, in the circumstances stated in subregulations (1A) and (1C).

 (1A) For paragraph (1) (b), the student was qualified for sole parent pension immediately before 20 March 1998, because of:

 (a) his or her partner being in gaol for a continuous period of at least 14 days; or

 (b) the illness or infirmity of his or her partner where the illness or infirmity:

 (i) resulted in the partner being unable to care for a child; and

 (ii) resulted in the student being unable to live together with the partner in a matrimonial home; and

 (iii) was, in the opinion of the Secretary to the Department of Social Security, likely to continue indefinitely.

 (1B) In subregulation (1A):

partner has the same meaning as in the Social Security Act 1991.

 (1C) Also for paragraph (1) (b), the situation stated in paragraph (1A) (a) or (b) still exists.

 (2) A student cannot get AUSTUDY for a period in the year before the start of a course he or she intends to undertake if, for that period, the student receives:

 (a) newstart allowance, sickness allowance, special benefit, partner allowance or benefit PP (partnered) (other than in the circumstances stated in subregulations (1A) and (1C)), under the Social Security Act 1991; or

 (b) youth training allowance under the Student and Youth Assistance Act 1973; or

 (c) farm support.

 (3) A student cannot get AUSTUDY if the student:

 (a) gets newstart allowance under the Social Security Act 1991 or youth training allowance under the Student and Youth Assistance Act 1973; and

 (b) has commenced a full-time course of 6 months or less; and

 (c) has been required to undertake the course by the Secretary, or the Secretary to the Department of Social Security.

 (4) If subregulation (5) applies to a student undertaking a course, the student cannot get AUSTUDY:

 (a) before the start of the course; or

 (b) for the period:

 (i) of 21 days commencing at the beginning of the day on which the course starts; or

 (ii) commencing on the day on which the course starts and ending at the end of the last day before the day on which the student’s entitlement to AUSTUDY is determined;

  whichever is the shorter.

 (5) This subregulation applies to a student who:

 (a) has commenced:

 (i) a full-time course of a duration of longer than 6 months; or

 (ii) a full-time course of a duration of 6 months or less that the student has not been required to undertake by the Secretary, or the Secretary to the Department of Social Security; and

 (b) immediately before commencing the course, gets newstart allowance under the Social Security Act 1991 or youth training allowance under the Student and Youth Assistance Act 1973.

 (6) In these Regulations:

farm support means:

 (a) exceptional circumstances relief payment; or

 (b) restart income support under the Farm Household Support Act 1992.

23 Excluded: (c) students who are full-time apprentices or trainees

  A student cannot get AUSTUDY if:

 (a) the student is employed as an apprentice or trainee in an industry, occupation, trade or kind of work; and

 (b) the student is undertaking an apprenticeship or traineeship in accordance with a training agreement; and

 (c) the student’s ordinary hours of employment (including the training component of the employment) are not less than the usual hours of employment for a full-time apprentice or trainee in that industry, occupation, trade or kind of work.

24 Excluded: (d) students in lawful custody

  A student cannot get AUSTUDY while he or she is in lawful custody.

25 Excluded: (e) students taking correspondence courses while overseas

  A student cannot get AUSTUDY for a course that he or she is undertaking by correspondence while living overseas.

Chapter 2 Who can get AUSTUDY?

Part 2 Special requirements for secondary students

26 What is a secondary student?

  A secondary student is a student doing a secondary course.

27 Where can secondary students study?

 (1) Secondary students must study at:

 (a) a secondary school or special school; or

 (b) a TAFE institution1; or

 (c) a higher education institution2.

 (2) For the purposes of subsection 3 (1) of the  Student and Youth Assistance Act 1973, a secondary school is a school located in Australia that is:

 (a) a government secondary school; or

 (b) a non-government secondary school that is not conducted for the profit of a person and is recognised as a secondary school:

 (i) under the law of a State or Territory; or

 (ii) for the payment of government capital or recurrent grants; or

 (iii) for the payment of government bursaries or allowances to its students.

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

28 Different levels of secondary courses

 (1) The level of years in secondary courses is:

 (a) year 12 is higher than year 11;

 (b) year 11 is higher than year 10;

 (c) year 10 is higher than year 9 or a lower year.

 (2) A course in English as a second language (ESL) is taken as being below year 10 level.

 (3) Where a condition set out in the following table applies to a student’s study, the study is of the overall level set out opposite that condition in the table:

 (4) If different items in the table give different levels for a student’s studies, the earlier item is used.

29 Workload: (a) secondary students attending school

 (1) A student attending a secondary school must study full-time.

 (2) To be a full-time student, a student must undertake in any period the amount of work that the school regards as a full-time amount for that period.

 (3) Subject to subregulation (5), a student cannot get AUSTUDY for a schoolday on which he or she is absent from school in a school term if:

 (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.

 (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.

 (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; and

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

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

 (1) This regulation applies to a secondary student who:

 (a) studies by correspondence; or

 (b) attends a TAFE institution1 or a higher education institution2.

 (2) A student must study full-time.

 (3) To be a full-time student, a student must be enrolled in and undertake at least three-quarters of the normal amount of full-time work for a period as set out in subregulations (5) and (6).

 (4) A student is not full-time in a period if the amount of work of the course:

 (a) in which he or she is enrolled for that period; or

 (b) that he or she is undertaking in the period;

is less than 75% of the normal amount of full-time work for the course in the period.

 (4A) Despite subregulation (4), a student is full-time in a period if the student is enrolled for, and undertaking, in the period a 6-unit full-time course for the New South Wales Higher School Certificate.

 (5) However, a student is full-time in the period from the first day of classes to the Friday in the second week of classes in a term or semester if the student enrols in and undertakes at least three-quarters of the normal amount of full-time work on at least 1 day in that period.

 (6) The normal full-time amount of work at either year 11 or year 12 level for a course primarily designed for an award listed in the following table is the amount of work listed in the table opposite that award:

 (7) The required workload is reduced to two-thirds of the normal amount of full-time work of a course if the student cannot undertake three-quarters of the normal workload because of:

 (a) the institution’s normal requirements for the course that the student is undertaking; or

 (b) a specific direction in writing to the student from the deputy principal.

 (8) Further, the required workload is reduced to two-thirds of the normal amount of full-time work of a course if the deputy principal of the educational institution recommends in writing that the student undertakes less than three-quarters for specified academic or vocational reasons.

 (9) Subregulation (8) cannot apply to more than half of the academic year.

32 Progress: (b) repeating year 12 study

 (1) A student cannot get AUSTUDY if the student:

 (a) is undertaking secondary study that is, or the overall level1 of which is, year 12 study; and

 (b) has undertaken full-time study at that level in 2 previous years.

 (2) However, previous study is not taken into account if:

 (a) the student failed the study because of:

 (i) an illness that had not been diagnosed when the student began that study; or

 (ii) other circumstances beyond the student’s control that were not apparent when the student began that study; or

 (b) the student failed the study because English is not his or her native language; or

 (c) the student undertook the study on a part-time basis; or

 (d) the student completed or discontinued the study within 6 months after the applicable academic year started; or

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

Chapter 2 Who can get AUSTUDY?

Part 3 Special requirements for tertiary students

Division 1 Preliminaries

33 Where can tertiary students study?

 (1) Tertiary students are students who are not undertaking primary or secondary courses, and include students undertaking TAFE courses.

 (2) A tertiary student must be undertaking a tertiary course approved for the AUSTUDY scheme at a higher education institution or a TAFE institution in Australia.

 (3) Each institution listed in section 4 or paragraphs 34 (4) (b)-(j) (inclusive) of the Higher Education Funding Act 1988 is regarded as a higher education institution for the purposes of subsection 3 (1) of the Student and Youth Assistance Act 19731.

 (4) The following institutions are regarded as technical and further education institutions for the purposes of subsection 3 (1) of the Student and Youth Assistance Act 1973:

 (a) an institution providing technical and further education conducted by a Commonwealth, State or Territory authority;

 (b) each institution listed in Schedule 2; and

these institutions are called TAFE institutions in these Regulations.

 (5) In these Regulations, TAFE course means a course of technical and further education.

Division 2 Workload

34 Workload: tertiary students

 (1) A tertiary student must study full-time.

 (2) To be a full-time student, a student must be enrolled in and undertake at least three-quarters of the normal amount of full‑time work for a period as set out in regulation 35.1

 (3) A student is not full-time in a period if the amount of work of the course that he or she is undertaking in, or is enrolled in for, that period is less than three-quarters of the normal amount of full‑time work for that period.

 (4) However, a student is full-time in the period from the first day of classes to the Friday in the second week of classes in a term or semester if the student enrols in and undertakes at least three‑quarters of the normal amount of full-time work on at least 1 day in that period.2

35 Workload: normal amount of full-time work

 (1) If a course is a designated course for the Higher Education Contribution Scheme (called HECS) under subsection 34 (1) of the Higher Education Funding Act 1988:

 (a) the normal amount of full-time work for a year of the course is the standard student load determined by the institution for the purposes of HECS; and

 (b) the normal amount of full-time work for a semester of the course is 0.5 of the standard student load1.

 (2) If the course is not a designated course for HECS, the normal amount of full-time work for a year of the course is:

 (a) if the institution specifies an amount that a full-time student should typically undertake — the amount specified; or

 (b) in any other case — the amount calculated using the following formula:

where:

total work of course is the total amount of work of the course.

total length of course is the minimum number of years needed to complete the course.

 (3) If the course is not a designated course for HECS, the normal amount of full-time work for a semester of a course is:

 (a) if the institution specifies an amount that a full-time student should typically undertake — the amount specified; or

 (b) in any other case — half the normal amount of full-time work for a year of the course.

 (4) If the course is not usually offered on a full-time basis2 — the normal amount of full-time work for a year is the normal amount of full-time work of another course that:

 (a) is offered on a full-time basis; and

 (b) is in a comparable field of study and is of the same level.

36 Workload: concession — academic and vocational reasons

 (1) The workload required by regulation 34 is reduced to two-thirds of the normal amount of full-time work if the student cannot meet the usual requirement because of:

 (a) the institution’s usual requirements for the course that the student is undertaking; or

 (b) a specific direction in writing to the student from the academic registrar or an equivalent officer.

 (2) The workload required by regulation 34 is reduced to two-thirds if the academic registrar (or an equivalent officer) of the educational institution recommends in writing that the student undertakes less than the normal full-time workload for specified academic or vocational reasons.

 (3) Subregulation (2) cannot apply to more than half of the academic year.

Division 3 Progress to later years and other courses — Preliminaries

38 Levels of tertiary courses

 (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 degrees, associate diplomas and 2 year undergraduate diplomas;

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

 (3) Group A courses are:

 (a) a postgraduate bachelor degree course, with or without honours;

 (b) a graduate or postgraduate diploma course;

 (c) a course of practical legal training at a higher education institution;

 (d) a course of advanced education regarded by an accrediting authority as being at PG1 level;

 (e) a graduate certificate course.

 (4) Group B courses are:

 (a) a bachelor degree course (other than a postgraduate course), with or without honours;

 (ab) the bachelor level component of a masters degree course with concurrent bachelor and masters level study;

 (b) a diploma course other than:

 (i) a graduate or postgraduate diploma course; or

 (ii) a course for which an entry requirement is successful completion of year 10 of secondary studies; or

 (iii) a TAFE course;

 (c) a Master’s qualifying course;

 (d) the Barristers or Solicitors Admission Board’s course;

 (f) a course of advanced education regarded by an accrediting authority as being at UG1 or UG2 level.

 (5) Group C courses are:

 (a) an associate degree course;

 (ab) an associate diploma course;

 (b) a diploma course at a TAFE institution for which an entry requirement is successful completion of year 12 of secondary studies;

 (c) a 2-year undergraduate diploma course.

 (6) Group D courses are:

 (a) a TAFE course at a higher education institution;

 (b) a TAFE course, unless the course is in Group A, B or C.

Division 4 Progress Rules

41 Previous study: time spent on a course

 (1) A student can get AUSTUDY in a year or semester of study (as the case requires) for a tertiary course only if, at the relevant date, the time already spent by the student in full-time study at the level of the tertiary course1, is less than:

 (a) if the minimum time for the course is more than one year — the sum of the minimum time for the course plus:

 (i) half a year2; or

 (ii) if the student is enrolled in a year-long subject — one year; or

 (iii) if the student’s further progress in the course depends on passing a whole year’s work in the course — one year; or

 (b) if the minimum time for the course is one year or less — the minimum time.

 (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 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 subject from which the student withdrew, if the educational institution did not record the withdrawal from the subject as a failure;

 (c) study time for a qualification of a foreign institution, except a qualification of the same standing as the degree of Master or Doctor at an Australian institution.

 (1B) In determining time already spent in full-time study, the time taken by the student to complete a course is taken to be no longer than the minimum time in which the course could have been completed.

 (2) If a student has studied part-time in the course, or in a course at the same level, he or she is taken to have undertaken the proportion of a full-time year calculated using the formula:

where:

Work undertaken means the work in the course undertaken part-time by the student; and

Normal full-time work means the normal full-time year’s work in the course.

 (3) In this regulation:

minimum time means:

 (a) the minimum time needed to complete the course at pass level; and

 (b) any additional honours years that the student has undertaken or is undertaking in the course.

relevant date means:

 (a) the start of a semester; or

 (b) if the course is not divided into semesters — the start of the academic year; or

 (c) if, after a semester has started, a student who is not studying a year-long subject changes his or her enrolment and starts studying a year-long subject — when the change occurs; or

 (d) if, after a semester or academic year has started, a student’s enrolment is changed and no longer includes a year-long subject — when the change occurs.

43 Previous study: combined courses

  If:

 (a) a student is undertaking a course of tertiary study in addition to a completed course at the same level1; and

 (b) at the institution in which the student is enrolled there is an approved course that is a combination of those 2 tertiary courses;

the student can only get AUSTUDY for half a year, or a year, more than the minimum time needed for completion of the approved combined course, on the same basis as a student referred to in regulation 41.

45 Previous study: postgraduate study

 (1) A student cannot get AUSTUDY if he or she has completed a course for:

 (a) the degree of Master or Doctor at an Australian institution; or

 (b) a qualification of the same standing at a foreign institution;

whether the student was enrolled as full-time or not.

 (2) A written statement of the standing of a course at a foreign institution made by an officer in the National Office of Overseas Skills Recognition is taken to be prima facie evidence of whether the course is of the same standing, or is at least of the same standing, as a course for the degree of Master or Doctor at an Australian institution.

 (3) The statement is taken to be signed by the officer whose signature purports to appear on it unless it is proved otherwise.

46 Previous study: honours year and Master’s qualifying course

 (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.

Master’s qualifying course means a course, except an honours year, of a year of full-time study at undergraduate level that is a prerequisite for entry to a course for the degree of Master or Doctor.

Division 5 Concessions

47 Concession (a) completed previous course needed for entry to present course

  For the purposes of subregulation 41 (1), no account is taken of a course completed by a student if completion of the course is the normal requirement for admission to the student’s current course (unless the current course is a Master’s qualifying course).

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

 (1) For the purposes of subregulation 41 (1) and regulation 55, no account is taken of:

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

 (i) the student’s illness; or

 (ii) other circumstances beyond the student’s control; 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 control; 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.

 (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.

49 Progress: concession (c) short TAFE courses

  No account is taken of previous studies in a course if:

 (a) it is a TAFE course; and

 (b) its normal length (for a full-time student) is one year or less.

50 Progress: concession (d) study more than 10 years ago

  No account is taken of a course undertaken more than 10 years ago, unless:

 (a) in the case of a course for the degree of Master or Doctor — the course is completed; and

 (b) in the case of another course that was not completed 10 years ago — the course has since been completed.

51 Progress: concession (e) study in Australia for a non‑approved course

  No account is taken of study undertaken in Australia after 1973 if the course was not then approved for the Tertiary Education Assistance Scheme (TEAS) or the AUSTUDY scheme (unless the course is for the degree of Master or Doctor).

Chapter 2 Who can get AUSTUDY?

Part 4 Students with disabilities and students getting certain pensions

52 Recognition of students with disabilities and students getting certain pensions

 (1) The rules set out in regulations 53 to 55 (inclusive) apply to a student if:

 (a) an officer in the Commonwealth Rehabilitation Service has stated in writing that:

 (i) the student has a substantial physical disability; and

 (ii) the student cannot successfully undertake the normal full-time workload for his or her course because of the disability; or

 (b) a registered medical practitioner specialising in psychiatry has stated in writing that:

 (i) the student has a substantial psychiatric disability; and

 (ii) the student cannot successfully undertake the normal full-time workload for his or her course because of the disability; or

 (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;

 (c) the student is receiving:

 (i) a disability support pension, a carer payment or a pension PP (single) under the Social Security Act 1991; or

 (ii) an invalidity service pension or a carer service pension under the Veterans’ Entitlements Act 1986; or

 (ca) the student is receiving benefit PP (partnered) under Part 2.10 of the Social Security Act 1991 in the circumstances stated in subregulations 22 (1A) and (1C); 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; or

 (iii) is receiving a war widow’s pension under the Veterans’ Entitlements Act 1986; or

 (iv) is receiving a defence widow’s pension under the Veterans’ Entitlements Act 1986.

 (2) The workload and previous study rules set out in:

 (a) regulations 29 and 30, subregulation 32 (1), paragraph 32 (2) (c) and regulations 34, 35, 36 and 43; and

 (b) subject to paragraph 55 (2) (a) and subparagraph 55 (3) (b) (i) — regulation 41;