EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment and Education Services
STATUTORY RULES No. 345
STUDENT ASSISTANCE REGULATIONS (AMENDMENT)
Legislative authority
1. The Student Assistance Act 1973 (the Act) and the Student Assistance Regulations (the Regulations) provide the legislative authority for the AUSTUDY scheme and for Post-graduate Awards.
2. Section 36 of the Act provides that the Governor-General may make regulations for the purposes of the Act.
Outline of changes
3. The present Statutory Rules make the following changes to the Regulations:
• to ensure that the Australian National University is regarded as a university for the purposes of the Regulations (regulation 3 of the present Statutory Rules)
• to provide that the English as a Second Language Scheme is to be regarded as a “prescribed educational scheme” (regulation 4 of the present Statutory Rules)
• to take account of the replacement of the former ACT Child Welfare Ordinance by the new Children’s Services Ordinance (regulation 5(1) of the present Statutory Rules)
• to prevent the AUSTUDY income test from applying twice to amounts to which section 36AAA of the Income Tax Assessment Act applies (regulation 5(2) of the present Statutory Rules)
• to take account of the replacement of the former Higher School Certificate in Victoria by the Victorian Certificate of Education (regulation 5(3) of the present Statutory Rules)
• to take account of a change in name of the Department’s International Relations Section (regulations 6 and 7 of the present Statutory Rules)
• to provide that Social Security benefits are not to be taken into account in calculating a student’s basic AUSTUDY living allowance entitlement. Instead, they are to be deducted from the student’s overall AUSTUDY entitlement (regulations 8(1) and 9 of the present Statutory Rules)
• to extend the concession for students whose parents are basically dependent on Social Security payments, so that the concession also applies to students whose parents are basically dependent on AUSTUDY payments (regulation 10 of the present Statutory Rules)
• to enable secondary students to continue to be paid benefits while transferring from one school to another (regulation 11 of the present Statutory Rules)
• to clarify the provisions relating to the late lodgement of AUSTUDY applications (regulations 12 and 13 of the present Statutory Rules)
• to make provision for a student consenting to the Student Assistance Review Tribunal comprising two members, rather than the normal three members (regulation 14 of the present Statutory Rules)
• to take account of the establishment of the Canberra Institute of the Arts (regulation 16 of the present Statutory Rules).
Commencement
4. Regulations 3, 5(1), 5(2), 8(1), 9, 10, 11 and 16 are retrospective in their effect; they are entirely beneficial and do not prejudicially affect any existing rights. The other amendments commence on gazettal.
5. Regulations 3, 5(1) and 16 are consequential on other Acts or Ordinances, and regulation 5(2) results from an earlier amendment to the Regulations. The commencement dates for these provisions therefore reflect the commencement dates for the other legislation. Further details are given later in this Statement under the notes on individual regulations.
6. Regulations 8(1), 9, 10 and 11 are deemed to have come into effect on 1 January 1988. These provisions rectify minor anomalies that were corrected administratively during the year in anticipation of the present amendments.
DETAILS OF AMENDMENTS
Regulation 1: Commencement
7. Regulation 1 provides for commencement of the amendments that do not come into operation on gazettal. These provisions are retrospective in their effect, being entirely beneficial and not prejudicially affecting any existing rights.
8. The reasons for these commencement dates are set out below in the notes on the relevant regulations.
Regulation 2: Principal Regulations
9. Formal. The Student Assistance Regulations are referred to as the “Principal Regulations”.
Regulation 3: Meaning of “university”
10. Regulation 3 amends regulation 4A of the Principal Regulations, which defines “university” by inserting a reference to the Australian National University.
11. The ANU was previously included in the definition in regulation 4A through a reference to the former Tertiary Education Commission Act 1977. However the ANU was excluded from the ambit of the definition when regulation 4A was amended by section 65(1) of the Employment, Education and Training Act 1988, consequential on the repeal by that Act of the Tertiary Education Commission Act.
12. The amendment takes effect from the date on which the Employment, Education and Training Act came into operation, 1 July 1988 (see Gazette No. S190, 30 June 1988).
Regulation 4: Meaning of “prescribed educational scheme”
13. Regulation 4 amends regulation 6 of the Principal Regulations, which defines the expression “prescribed educational scheme” for the purposes of section 31A(1)(d) of the Act. It adds the English as a Second Language Scheme to the definition of “prescribed educational scheme” in regulation 29(1).
14. Section 31A of the Act enables an overpayment incurred under the Student Assistance Act, the Social Security Act, the Veterans’ Entitlements Act, the Seamen’s War Pensions and Allowances Act or a “prescribed educational scheme” to be recovered by withholding from an entitlement under the Student Assistance Act.
Regulation 5: Interpretation - Part III
15. Regulation 5 amends regulation 29 of the Principal Regulations, which defines expressions used in Part III of the Principal Regulations.
16. Subregulation 5(1) replaces a reference in regulation 29(1) to the former Child Welfare Ordinance 1957 (ACT) with a reference to the Children’s Services Ordinance 1986 (ACT), which has replaced it.
17. Subregulation 5(1) takes effect from the date on which the Children’s Services Ordinance came into operation (Gazette No. GN13, 20 April 1988).
18. Subregulation 5(2) inserts a new provision, subregulation 29(1A). This provides that a spouse’s or parent’s income does not include an amount to which section 36AAA of the Income Tax Assessment Act applies and which was previously taken into account for AUSTUDY purposes. (Section 36AAA is a concession for farmers who are disadvantaged through the forced destruction of livestock.)
19. The new subregulation 29(1A) prevents a section 36AAA amount from being included in the AUSTUDY income test in two different years. AUSTUDY previously included a section 36AAA amount in a spouse’s or parent’s income for the financial year in which the amount was actually derived. However, following r.4(a) of Statutory Rules No. 305 of 1988, such an amount would be included in the spouse’s or parent’s income for the financial year in which the amount is included for tax purposes.
20. As the changes made by Statutory Rules No. 305 of 1988 took effect at the beginning of 1988, subregulation 29(1A) applies only where section 36AAA amounts were taken into account in relation to AUSTUDY applications for years earlier than 1988.
21. Assessment of an an earlier year’s AUSTUDY application could have included a section 36AAA amount derived either in the financial year normally used for AUSTUDY assessment or in the financial year used for “current income” assessment. These two cases are reflected in subparagraphs 29(1A)(b)(i) and
29(1A)(b)(ii) respectively.
22. The insertion of the new subregulation 29(1A) takes effect from 1 January 1988, when Statutory Rules No. 305 of 1988 came into operation.
23. Subregulation 5(3) replaces a reference in regulation 29(4E) to the former Higher School Certificate in Victoria with a reference to the present Victorian Certificate of Education.
Regulation 6: Levels of prescribed courses
Regulation 7: Ineligibility - adult secondary students - repeat year of secondary study
24. Regulations 6 and 7 amend regulations 34A and 34E of the Principal Regulations respectively. They replace references to the International Relations Section of the Department with references to the Comparative Systems Section.
25. Regulations 34A and 34E provide that a certificate by the Department’s Comparative Relations Section about the comparative level of overseas studies is evidence as to the level of those studies.
Regulation 8: Living allowance - students of independent status
26. Regulation 8 amends regulation 41 of the Principal Regulations, which imposes the income test for independent students.
27. Subregulation 8(1) provides that Social Security benefits are not to be taken into account in determining a student’s basic living allowance entitlement. (Instead, they are to be deducted under section 31A of the Act from his or her overall AUSTUDY entitlements, including the dependent spouse allowance and the fares allowance.)
28. Subregulation 8(1) corrects an anomaly that would disadvantage some students and has accordingly been implemented as soon as possible, being deemed to have taken effect from 1 January 1988.
29. Subregulation 8(2) makes a drafting change, omitting a reference excluding family allowance under the Social Security Act from the income test for the dependent spouse allowance. The reference is unnecessary as the definition of “income” in regulation 29(1) of the Principal Regulations does not include a spouse’s family allowance.
Regulation 9: Living allowance - students not of independent status
30. Regulation 9 amends regulation 42 of the Principal Regulations, which imposes the income test for non-independent students. The amendment provides that Social Security benefits are not to be taken into account in determining a student’s basic living allowance entitlement. (Instead, they will be deducted under section 31A of the Act from his or her overall AUSTUDY entitlements, including the fares allowance.)
31. The amendment corrects an anomaly that would disadvantage some students and has accordingly been implemented as soon as possible, being deemed to have taken effect from 1 January 1988.
Regulation 10: Living allowance - parental income concession
32. Regulation 10 amends regulation 42A of the Principal Regulations, which provides for concessions to the parental income test in situations where the parental income has been adversely affected.
33. Paragraph 10(a) makes a minor drafting change to regulation 42A(5), taking out some unnecessary words. The change is parallel to the drafting of the new regulation 42A(6).
34. Paragraph 10(b) inserts a new provision, subregulation 42A(6). The existing subregulation 42A(5) provides that the parental income test does not apply where the student has a parent who is receiving Social Security or similar payments (“pension benefit” is defined in regulation 29(1) of the Principal Regulations). The new subregulation 42A(6) extends the concession to students whose parents receive an AUSTUDY living allowance under Part III of the Regulations.
35. The new paragraph 42A(6)(b) refers to a parent to whom subregulation 41(5) applies. This refers to a parent who is receiving the AUSTUDY living allowance, including the dependent spouse component.
36. The amendment corrects an anomaly that would disadvantage some students and has accordingly been implemented as soon as possible, being deemed to have taken effect from 1 January 1988.
Regulation 11: Secondary students - full-time workload
37. Regulation 11 amends regulation 44G of the Principal Regulations, which requires a secondary student to be enrolled to undertake a full-time workload. The amendment adds a new subregulation 44G(2) to enable secondary students to continue to be paid benefits for the period while transferring from one school to another.
38. The provision modifies the operation of regulation 44G(1). This provision continues to apply to a student while changing schools because the student is then proposing to undertake secondary studies at the new school.
39. The amendment will assist some students who would otherwise be unreasonably disadvantaged and it has accordingly been implemented as soon as possible, being deemed to have taken effect from 1 January 1988.
Regulation 12 - time limit for applications - change in circumstances
40. Regulation 12 amends regulation 45A of the Principal regulations. Regulation 45A requires that, where during the year a student becomes qualified to receive AUSTUDY, he or she should advise the Department within four weeks of qualifying. If this is not done, benefits are payable only from the date on which the Department is advised.
41. The amendment clarifies that regulation 45A applies whether or not the student had lodged an AUSTUDY application before the “applicable lodgement date” (defined in regulation 29(D).
Regulation 13 - Time limit for applications - extenuating circumstances
42. Regulation 13 amends regulation 45B. Students are required to to lodge AUSTUDY applications by the applicable lodgement date (regulation 45) or to advise the Department within four weeks if they qualify for assistance during the year (regulation 45A). However, regulation 45B modifies these provisions where students cannot comply because of circumstances beyond their control.
43. The amendment clarifies that the concession in regulation 45B does not modify the requirement that AUSTUDY applications be lodged by 31 December of the year of study (see regulation 32(3)).
Regulation 14: Notice under paragraph 25A(3) (c) of the Act
44. Regulation 14 inserts a new provision, regulation 81, which prescribes that a notice under paragraph 25A(3)(c) of the Student Assistance Act is to be in the form prescribed by the Convenor of the Student Assistance Review Tribunal. Paragraph 25A(3)(c) of the Act requires a student’s consent for the Tribunal to be constituted by two members rather than by the normal three members.
Regulation 15: Notice to be given of certain matters affecting Assistance
45. Regulation 15 corrects the punctuation of paragraph 85(1)(s) of the Principal Regulations. This provision requires AUSTUDY beneficiaries to advise the Department if they become entitled to relevant Social Security payments.
Regulation 16: Schedule 1
46. Regulation 16 amends Schedule 1 of the Principal Regulations, which lists institutions included in the definition of “advanced education institution”. The amendment deletes references to the Canberra School of Art and the Canberra School of Music, and adds a reference to the Canberra Institute of the Arts which has incorporated the other two institutions.
47. Regulation 16 is taken to have come into operation on 8 February 1988. This is the commencement date for the Canberra Institute of the Arts Ordinance 1988 (ACT) (No. 1 of 1988) which established the new Institute (see Gazette No. S35, 8 February 1988).