EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 20
Issued by the authority of the Minister for Education
Student Assistance Act 1973
Student Assistance Amendment Regulations 2009 (No. 1)
Subsection 56(1) of the Student Assistance Act 1973 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which, by the Act, are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The ABSTUDY Scheme (also known as the Aboriginal and Torres Strait Islander Study Scheme) provides benefits to Aboriginal and Torres Strait Islander people most in need of assistance to promote equity of educational opportunity. The Assistance for Isolated Children (AIC) Scheme helps the families of primary, secondary and certain tertiary students who are unable to attend an appropriate government school on a daily basis because of geographical isolation.
The ABSTUDY and AIC Schemes are schemes that have not been established under legislation but which have with statutory debt recovery and compliance provisions in the Act.
The Student Assistance Regulations 2003 (the Principal Regulations) currently prescribe definitions and events for the administration of those schemes.
The purpose of these Regulations is to amend the Principal Regulations to ensure that definitions of relationships align with the changes made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (‘the Same-Sex Act’) and other related reforms to Commonwealth laws; that is, to place people in same-sex relationships and the children of those relationships on the same legal footing as people in opposite-sex relationships and the children of those relationships.
These Regulations also update references in the Principal Regulations to the national apprenticeships scheme, which has changed its name from ‘New Apprenticeships’ to ‘Australian Apprenticeships’.
Details of the Regulations are set out in the Attachment.
These Regulations will commence on 1 July 2009.
Explanation of Provisions
Regulation 1 provides that the Regulations are the Student Assistance Amendment Regulations 2009 (No. 1).
Regulation 2 provides that the Regulations commenced on 1 July 2009. This is the date that amendments to the A New Tax System (Family Assistance) Act 1999, the Social Security Act 1991 and other welfare-related laws are made by the Same-Sex Act.
Regulation 3 provides that Schedule 1 to the Regulations amends the Principal Regulations.
Item 1 in Schedule 1 will make a minor amendment to Regulation 3 to allow a new subregulation (2) to be inserted by item 3. Item 2 of Schedule 1 substitutes the definition of ‘spouse’ with a new definition, ‘relationship parent.’ As a result, Items 21, 23 and 25 omit and replace all further references to ‘spouse’ with a reference to ‘partner.’ This will ensure that the proposed Regulations will extend to same sex de facto partners, in situations where one of those partners may not be a ‘relationship parent.;
Item 2 provides that ‘Relationship parent’ has the same meaning given by subsection 5(25) of the Social Security Act 1991. The term ‘relationship parent’ has been inserted as a definition in these regulations to ensure that both members of a couple, regardless of their sex, are recognised as parents of a child for the purposes of the ABSTUDY and AIC schemes. The inclusion of ‘relationship parent’ as a defined term in regulation 3 also serves the purpose of ensuring that the meaning of ‘parent’ in the Principal Regulations is not limited to a natural or adoptive parent of the student or new apprentice.
To give effect to this intention further, items 14, 16, 18 and 20 omit references to a ‘natural or adoptive parent’ and replace these references with ‘a natural, adoptive or relationship parent.’ Item 14 amends sub-regulation 5C(1) to ensure that a parent is ‘any of’ a ‘natural, adoptive or relationship parent.’
Item 3 inserts a further new subregulation 3(2) and provides that the definition for ‘partner,’ which includes same sex de facto partners. Items 10, 19 and 22 remove all other existing definitions of ‘partner’ from regulation 5, regulation 5D and regulation 7. Item 12 omits the reference in subparagraph 5B(3)(a)(i) to ‘has lived in a de facto relationship’ and replaces this reference with ‘has had a de facto partner (within the meaning of the Acts Interpretation Act 1901).’ This amendment further ensures that these Regulations extends to same sex de facto partners.
These Regulations also replace all references to ‘new apprentice’ with ‘Australian Apprentice’ in the Principal Regulations (see Items 4, 6, 7, 8, 11, 13, 15, 17, 18 and 24 and 23). Item 9 omits the definition of ‘new apprentice’ and item 5 effectively replaces this definition by inserting a new definition, ‘Australian Apprentice’ into these Regulations. Item 26 replaces item 133 of Schedule 1 to the Principal Regulations to clarify its language and change the reference to New Apprenticeships scheme with the ‘scheme known as Australian Apprenticeships.’
Overview
The Student Assistance Amendment Regulations 2009 (No. 1) were enacted to amend the existing Student Assistance Regulations 2003, aiming to address gaps and outdated terminology in the ABSTUDY and Assistance for Isolated Children (AIC) Schemes. These schemes, which provide educational support to Aboriginal and Torres Strait Islander people and families of isolated children, respectively, were not established under legislation but have statutory debt recovery and compliance provisions in the Student Assistance Act 1973. The regulations were introduced to ensure that the definitions of relationships in the Principal Regulations align with the reforms made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, thereby placing people in same-sex relationships and their children on the same legal footing as those in opposite-sex relationships. Additionally, these regulations update references to the national apprenticeships scheme, changing its name from 'New Apprenticeships' to 'Australian Apprenticeships'. These amendments ensure that the schemes continue to meet current legal standards and provide equitable support to all eligible participants.
Scope and Application
The Student Assistance Amendment Regulations 2009 (No. 1) amend the existing Student Assistance Regulations 2003 to ensure alignment with legislative changes pertaining to same-sex relationships and the renaming of the national apprenticeships scheme. The regulations apply to individuals participating in the ABSTUDY and Assistance for Isolated Children (AIC) schemes, as well as those involved in Australian apprenticeships, ensuring these schemes recognise same-sex de facto relationships and their children as equivalent to opposite-sex relationships. The changes are designed to provide equitable treatment under Commonwealth laws, reflecting the amendments made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008. The regulations also update terminology from ‘New Apprenticeships’ to ‘Australian Apprenticeships’ throughout the Student Assistance Regulations 2003, ensuring consistency with current nomenclature. These amendments commenced on 1 July 2009, the same date as the reforms to other welfare-related laws under the Same-Sex Act.
Key Provisions
The Student Assistance Amendment Regulations 2009 (No. 1) amend the existing Student Assistance Regulations 2003, which govern the ABSTUDY and Assistance for Isolated Children (AIC) schemes. Regulation 2 specifies that these amendments commenced on 1 July 2009, aligning with other legislative changes made by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008. The primary objective of these amendments is to ensure that people in same-sex relationships and their children are treated equally under the law compared to those in opposite-sex relationships. Regulation 3, through Schedule 1, updates the definitions and references within the Principal Regulations to reflect these changes.
These Regulations introduce the term 'relationship parent' to encompass both members of a couple as parents, regardless of their sex, for the purposes of the ABSTUDY and AIC schemes. Item 2 of Schedule 1 substitutes the definition of'spouse' with 'relationship parent,' and Items 21, 23, and 25 replace references to 'spouse' with 'partner.' This change ensures that same-sex de facto partners are recognized and afforded the same rights and responsibilities as opposite-sex partners. Furthermore, Items 14, 16, 18, and 20 amend sub-regulations to include 'relationship parent' alongside 'natural or adoptive parent,' ensuring broader inclusivity in parental definitions.
The Regulations also extend to include same-sex de facto partners by replacing references to 'new apprentice' with 'Australian Apprentice' and updating the definition of 'partner' to include same-sex de facto partners. Items 4 through 26, and Item 9, systematically replace references to the 'New Apprenticeships' scheme with the 'Australian Apprenticeships' scheme. This comprehensive update ensures that the definitions and regulatory framework accommodate changes in the national apprenticeships scheme and the evolving legal landscape regarding same-sex relationships.
The amendments impose obligations on parties involved in the ABSTUDY and AIC schemes to recognize and treat same-sex de facto partners and their children equally. This includes ensuring that eligibility and benefits are not contingent on the sex of the partners or parents. Additionally, these Regulations mandate that all references to 'new apprentice' be updated to 'Australian Apprentice,' reflecting the name change of the national apprenticeships scheme. Failure to comply with these amendments could result in non-recognition of relationships and potential exclusion from benefits, thus affecting the eligibility and rights of affected individuals and families.
In terms of consequences for non-compliance, while the explanatory statement does not specify particular offences, penalties, or civil/criminal consequences, any breaches of these Regulations could lead to administrative penalties or legal challenges. The precise penalties would depend on the nature and severity of the breach, as well as the specific provisions of the Student Assistance Act 1973. However, the overarching goal is to ensure equitable treatment and compliance with the updated definitions and regulatory requirements.