EXPLANATORY STATEMENT
STATUTORY RULES NO. 442 OF 1990
STUDENT ASSISTANCE REGULATIONS (AMENDMENT)
Issued by the authority of the Minister for Higher Education and Employment Services
Legislative authority
1. The Student Assistance Act 1973 (the Act) and the Student Assistance Regulations (the Principal Regulations) provide the legislative authority for the AUSTUDY scheme and for Post-graduate Awards.
2. Section 56 of the Act enables the Governor-General to make regulations for the purposes of the Act.
Changes to the Student Assistance Regulations
3. The present Regulations amend the Regulations to:
implement some changes announced in the 1989 Budget context;
correct some minor anomalies in the AUSTUDY scheme;
repeal provisions dealing with the AUSTUDY scheme, with effect from 1 January 1991 (they are being replaced by the new AUSTUDY Regulations);
remove provisions for granting further Post-graduate Awards.
1989 Budget decisions
4. The amendments implement the following decisions taken in the 1989 Budget context:
abolish the 6 week qualifying period under AUSTUDY for some students who are independent because they are homeless; for other categories; reduce it to 2 weeks and pay some allowance during the period (regulations 8(a) and 17 of these Regulations)
provide that secondary students may receive AUSTUDY for a repeat year if their previous failures were because they are not native English speakers (regulation 11)
provide that AUSTUDY treat students’ educational assistance like any other income, ending the more rigorous income test for such assistance (regulations 14(a), 15(a))
raise the threshold for the spouse and parental income tests from $16,950 to $18,150 (regulations 14(c), 15(c))
raise the thesis allowance for some classes of Post-graduate Awards from $250 to $262 (regulation 22(b)).
Correction of minor anomalies in the AUSTUDY scheme
5. The present Regulations make the following minor corrections to the AUSTUDY scheme:
exclude payments to members of the reserve defence forces from the income test on student income (regulation 6(b))
take account of changes in the workload for matriculation courses in various States (regulations 6(c) and (d))
enable students to retain the transitional concession for pensioner students even if ceasing to receive a pension for up to 12 months (regulation 7)
give independence to students admitted into Australia under the Special Humanitarian Program if they do not have a parent in Australia (regulation 8(b))
give independence to students whose surviving parent is confined to a nursing home (regulation 8(c))
clarify that the rule against receiving other Commonwealth student assistance does not apply to assistance from the Australian Capital Territory or to non-monetary services provided under the Commonwealth Rehabilitation Service (regulation 9)
modify the conditions for New Zealand citizens to qualify as permanent residents, to draw them into line with those applying under the Social Security Act (regulation 10)
pay assistance up to the end of the year where the academic year ends on or after 15 September, not in November or December as previously (regulation 12(b))
pay assistance to students while transferring from secondary to tertiary study during the year (regulation 13)
disregard assets that a person owns but cannot obtain (regulation 16)
enable students with a rehabilitation allowance to receive the education supplement of $30 a week (regulation 25)
increase the fares allowance for students who travel by private car where public transport is not operating (regulations 26, 28(1))
include the University of Western Sydney in the definition of “university” during 1989 (regulation 28(2)).
Repeal of regulations dealing with the AUSTUDY scheme
6. Separate regulations are being made to provide for the AUSTUDY scheme, commencing on 1 January 1991. They are called the AUSTUDY Regulations.
7. Because of the new AUSTUDY Regulations, the Student Assistance Regulations are amended so as not to apply to the AUSTUDY scheme: see regulations 5, 23, 24 of the present Regulations.
Phasing out Post-graduate Awards
8. The Post-graduate Awards are being phased out, being replaced by institution-based postgraduate scholarships, called Australian Postgraduate Awards.
9. The Student Assistance Regulations were previously amended to prevent new research Awards being granted under the Student Assistance Act. The present Regulations provide that no new course work Awards are to be granted: see regulations 19 and 20.
Commencement
10. Details of the commencement dates and the reasons for these are set out in the accompanying notes on regulation 1.
11. Some provisions in the present Regulations operate retrospectively. These are the changes announced in the 1989 Budget context and the changes correcting minor anomalies. They are almost wholly beneficial in their effect, but regulation 27 of these Regulations protects any pre-existing rights that might otherwise have been adversely affected by the retrospective amendments.
12. A commencement date of 1 January 1991 applies to the provisions repealing the AUSTUDY Regulations and ending the grant of further Post-graduate Awards.
13. The remaining provisions commence on gazettal. They reflect the re-numbering of the Act or repeal spent regulations.
DETAILS OF AMENDMENTS
Regulation 1: Commencement
14. Regulation 1 sets out the commencement dates.
15. Subregulation 1(1) lists the provisions that commence on 1 January 1990. These amend the Regulations to make policy changes which are to apply from 1990. This reflects the administration of student assistance on a calendar year basis.
16. Subregulation 1(2) lists the regulations that commence on 1 January 1991. These amend the Principal Regulations so that they do not apply to the AUSTUDY scheme (regulations 5, 23, 24) and prevent further Post-graduate Awards being granted (regulations 19, 20).
17. Subregulation 1(3) provides that regulation 4 commences on 19 December 1989. Subregulation 1(3) makes changes consequential on amendments to the Migration Act 1958 which commenced on that date.
18. Subregulation 1(4) provides that regulations 6(c) and (d) commence on 1 January 1989. These regulations reflect changes to the workload for various year 11 and 12 courses in various States. The amendments commence at the beginning of the year when the new workloads were introduced.
19. Subregulation 1(5) provides that regulation 7 commences on 1 January 1987, when regulation 29A of the Principal Regulations commenced. Regulation 7 widens the application of a concession for continuing pensioners, in response to a recommendation by the Ombudsman.
20. Subregulation 1(6) provides that regulation 8(d) commences on 1 March 1989. Regulation 8(d) is consequential on the repeal of the former Conciliation and Arbitration Act 1904 and the commencement of the Industrial Relations Act 1988. These changes commenced on 1 March 1989.
21. Subregulation 1(7) provides that regulation 12(b) commences on 15 September 1989. Regulation 12(b) provides that AUSTUDY is paid up to the end of the year where the academic year ends on or after 15 September. The commencement date enables this concession to be applied to the 1989 academic year.
22. Subregulation 1(8) provides that regulation 26 commences on 4 December 1989. Regulation 26 raises the fares allowance paid if public transport is not available and students travel by private car. The increases commence on the same day as corresponding increases in the Public Service motor vehicle allowance.
Regulation 2: Principal Regulations
23. Regulation 2 defines “Principal Regulations” as referring to the Student Assistance Regulations.
Regulation 3: Interpretation: general
24. Regulation 3 amends regulation 3 of the Principal Regulations, which defines expressions used in the Principal Regulations.
25. Subregulation 3(1) amends the definition of “child”. It omits paragraph (c) of the definition, which required that a person’s “child” be a natural, adoptive or stepchild. The criterion is now solely whether the child is dependent on the person.
26. Subregulation 3(2) is consequential on the repeal of the AUSTUDT provisions. The amendment limits the expression “student assistance” to refer to Post-graduate Awards. This restricts the operation of Part VI (“Miscellaneous”) to Post-graduate Awards.
Regulation 4: Meaning of “permanent resident”
27. Regulation 4 amends regulation 5 of the Principal Regulations, which defines “permanent resident” for the purposes of section 3(1) of the Act. It amends references to the Migration Act 1958, following amendments to that Act.
Regulation 5: Repeal
28. Regulation 5 repeals provisions relating to the AUSTUDY scheme. This complements the introduction of the new AUSTUDY Regulations.
29. The repealed provisions are regulations 6, 7 and Part III. Regulation 6 defines “prescribed educational scheme” and regulation 7 defines “institutions to be treated as technical and further education institutions”; these expressions are used only in relation to AUSTUDY. Part III of the Regulations deals with AUSTUDY.
Regulation 6: Interpretation
30. Regulation 6 amends regulation 29 of the Principal Regulations. Regulation 29 defines expressions used in Part III of the Principal Regulations, which deals with AUSTUDY.
31. Paragraph 6(a) makes a drafting amendment, consequential on the amendment in paragraph 6(b).
32. Paragraph 6(b) excludes reserve defence forces pay from a student’s “income”. This means that the AUSTUDY income test on a student’s income does not apply to this kind of income.
33. Paragraphs 6(c) and (d) amend regulation 29(4E), which defines the normal full-time workload for year 11 and 12 secondary courses. The amendments reflect changes in the workloads in various States.
Regulation 7: Students who cease to be continuing pensioner students
34. Regulation 7 amends regulation 29A of the Principal Regulations, which sets out when the transitional concession for continuing pensioner students ceases to apply. Regulation 29A is amended so that students keep the concession although ceasing to receive a pension for up to one year.
35. (Regulation 29(1) of the Principal Regulations defines a “continuing pensioner student” as a student who was receiving both student assistance and a pension at the end of 1986. In 1987 the amount of AUSTUDY paid to new pensioner students was significantly reduced. However, under regulation 43A of the Principal Regulations, continuing pensioner students may continue to receive the level of student assistance they were receiving at the end of 1986.)
Regulation 8; Independent status
36. Regulation 8 amends regulation 30 of the Principal Regulations, which sets out the criteria for qualifying as independent under AUSTUDY.
37. Paragraph 8(a) amends regulation 30(1A) (c) (i), which enables a student to qualify as independent through being homeless. Paragraph 8(a) modifies the former qualifying period of 6 week’s
the qualifying period is reduced to 2 weeks for students whose parents refuse to support them (these students now qualify for some assistance during the qualifying period: new regulation 42C, inserted by regulation 17);
no qualifying period applies to students who are the victims of domestic violence or the like.
38. Paragraph 8(b) repeals the former regulation 30(1A)(d), inserting a new regulation 30(1A)(d) in its place. The former regulation 30(1A)(d) enabled refugees to qualify as independent if they did not have parents in Australia. The new provision extends this to students who are admitted into Australia under the Special Humanitarian Program and who do not have a parent in Australia.
39. Paragraph 8(c) repeals the former regulation 30(1C)(c) and substitutes a new paragraph in its place. The amendment enables a student to qualify as independent if his or her surviving parent is confined to a nursing home. This is additional to the case in the former paragraph 30(1C)(c), giving independence to a student whose surviving parent is mentally incapacitated.
40. Paragraph 8(d) amends regulation 30(2)(b)(ii) by removing references to industrial agreements and awards under the former Conciliation and Arbitration Act 1904 and inserting a reference to awards under the new Industrial Relations Act 1988.
41. (Awards under the former Act are continued under the new Act: section 7(1) of the Industrial Relations (Consequential Provisions) Act 1988. No industrial agreements under the former Act were in force when the new legislation came into operation.)
Regulation 9: Ineligibility - benefit from the Commonwealth for education or vocational training
42. Regulation 9 amends regulation 33 of the Principal Regulations, which provides that AUSTUDY is not paid if students receive other education assistance from the Commonwealth.
43. Paragraph 9(a) provides that assistance from the Australian Capital Territory is not treated as Commonwealth assistance.
44. Paragraph 9(b) provides that the rule in regulation 33 does not apply to services supplied by the Commonwealth Rehabilitation Service. (However, financial assistance provided by the CRS renders a student ineligible for AUSTUDY.)
Regulation 10: Ineligibility - New Zealand students
45. Regulation 10 substitutes a new regulation 33C to specify the residence requirements for students from New Zealand. Special rules apply to New Zealand citizens as they do not need visas to enter Australia.
46. Previously, a New Zealand citizen was required to have lived in Australia for at least 6 months. The new provision adds that the student can also qualify by having lived in Australia for the last year, allowing 2 months’ absence overseas. This is similar to provisions in the Social Security Act 1947.
47. The previous regulation 33C provided that, once New Zealand citizens qualified for AUSTUDY, they continued to qualify under the residence criterion. This provision has not been retained in view of the new concession.
Regulation 11: Ineligibility; adult secondary students - repeat year of secondary study
48. Regulation 11 amends regulation 34B of the Principal Regulations. The amendment provides that previous secondary study by an adult secondary student is disregarded if there were failures due to the student’s lack of English.
49. (Regulation 34E provides that adult secondary students studying at year 10, 11 or 12 level do not qualify for AUSTUDY if they have previously studied at the same level. Under subregulation 34E(2), this does not apply if previous failures were due to circumstances beyond the student’s control unless the failures were apparent at the start of the year of study.)
Regulation 12: Termination: completion or cessation of approved courses
50. Regulation 12 amends regulation 37 of the Principal Regulations, which terminates AUSTUDY where a student completes or discontinues a course of study.
51. Paragraph 12 (a) provides that regulation 37 is subject to the new regulation 37A (inserted by regulation 13 of these Regulations).
52. Paragraph 12 (b) enables AUSTUDY to be paid to a student who transfers from secondary to tertiary study if the student does so within 4 weeks (unless there are extenuating circumstances).
Regulation 13: Students transferring from secondary to tertiary approved courses
53. Regulation 13 inserts a new regulation 37A. This enables AUSTUDY to be paid for the interim period while a student transfers from secondary to tertiary study. The student must start the new tertiary course as soon as possible, but at least within 28 days (unless there are extenuating circumstances).
Regulation 14: Living allowance: students of independent status
54. Regulation 14 amends regulation 41 of the Principal Regulations, which provides the AUSTUDY income test for independent students.
55. Paragraph 14 (a) amends regulation 41(3) by repealing the income test on income from educational assistance. Educational assistance is subject to the less rigorous income test applying to any other income that the student may have.
56. Paragraph 14 (b) inserts a reference to a spouse who qualifies for living allowance under AUSTUDY, rather than under paragraph 11(b) of the Act. The change is needed as paragraph 11(b) of the Act has been repealed.
57. Paragraph 14(c) raises the threshold of the spouse income test from $16,950 to $18,150.
58. Paragraphs 14 (d) and (e) make amendments consequential on paragraph 14(a).
Regulation 15; Living allowance: students not of independent status
59. Regulation 15 amends regulation 42 of the Principal Regulations, which sets out the AUSTUDY income test for students who do not qualify as independent.
60. Paragraph 15 (a) amends regulation 42(3) by repealing the income test on income from educational assistance. Educational assistance is subject to the less rigorous income test applying to any other income that the student may have.
61. Paragraph 15(b) makes an amendment consequential on paragraph 15(a).
62. Paragraph 15(c) raises the threshold of the parental income test from $16,950 to $18,150.
63. Paragraph 15(d) makes an amendment consequential on paragraph 15(a).
Regulation 16; Living allowance; assets test
64. Regulation 16 amends regulation 42B of the Principal Regulations, which sets out the AUSTUDY assets test. Under the amendment, the assets test does not apply to assets that cannot be received.
65. The new provision does not apply where market conditions make it difficult to sell an asset. Nor does it apply because of contractual or statutory requirements for a waiting period before an asset can be sold.
Regulation 17; Living allowance; interim payments
66. Regulation 17 inserts a new provision, regulation 42C. This provides for payments during the qualifying period for students who would otherwise be independent because they are homeless. The level of payment is the maximum at-home rate (“prescribed proportion Q”). (See also paragraph 8(a) of the present Regulations.)
Regulation 18: Interpretation; Part IV
67. Regulation 18 amends regulation 49 of the Principal Regulations, which defines expressions used in the regulations dealing with Post-graduate Awards. The amendments correct references to the Act, reflecting the re-numbering of the Act.
Regulation 19: No further applications for Post-graduate Awards
68. Regulation 19 repeals regulation 50 of the Principal Regulations, which dealt with applications for Post-graduate Awards. It substitutes a new regulation 50, which provides that no applications may be made for an Award for 1991 or after.
Regulation 20: Repeal
69. Regulation 20 repeals regulations 50A, 52 and 55 of the Principal Regulations, reflecting the decision not to grant any further Post-graduate Awards:
regulation 50A provided that a student should not be granted an Award unless eligible;
regulation 52 provided for the number of Awards to be granted each year;
regulation 55 provided for the process of selecting who should be granted a Course Award.
Regulation 21: Repeal
70. Regulation 21 repeals regulation 71A of the Principal Regulations, which provided for a higher education administration Charge allowance under Post-graduate Awards. This provision is now unnecessary, as the charge is no longer imposed (having been replaced by the Higher Education Contribution Scheme).
Regulation 22: Thesis allowance
71. Regulation 22 amends regulation 72 of the Principal Regulations, which provides for the payment of a thesis allowance under Post-graduate Awards.
72. Paragraph 22 (a) changes a reference to the Act, consequential on the re-numbering of the Act.
73. Paragraph 22 (b) increases the thesis allowance under Advanced Education Institution Awards and Course Awards from $250 to $262.
Regulation 23: Application
74. Regulation 23 inserts a new provision, regulation 75AAA into Part IV of the Principal Regulations. Part IV deals with the proceedings of the Student Assistance Review Tribunal. The effect of the amendment is that Part IV does not apply to any proceedings relating to the new AUSTUDY Regulations.
Regulation 24: Repeal
75. Regulation 24 repeals regulation 85, which lists the prescribed events that AUSTUDY recipients must inform the Department about. The repeal is consequential on the new AUSTUDY Regulations.
Regulation 25: Schedule 3A
76. Regulation 25 amends Schedule 3A of the Principal Regulations, which lists pensions which affect a student’s right to receive AUSTUDY. If a student’s pension is listed in Part I of the Schedule, no AUSTUDY is paid. If the pension is listed in Part II, the student receives an education supplement of $30 a week, but does not qualify for normal living allowance.
77. Paragraph 25(a) inserts a new item 11A into Part II of Schedule 3A. The new item enables the education supplement to be paid to students receiving the rehabilitation allowance under the Social Security Act.
78. Paragraph 25(b) omits item 16 and substitutes a new item. The former item 16 enabled the education supplement to be paid if the student received a wife’s pension and the husband was an invalid pensioner. The new item 16 adds that the education supplement of $30 a week is also to be paid if the husband receives a rehabilitation allowance.
Regulation 26: Schedule 6
79. Regulation 26 repeals Schedule 6 to the Principal Regulations, substituting a new Schedule in its place. Schedule 6 sets out the rate of fares allowance under subregulations 47(10) and (11) where there is no public transport and a student travels by private vehicle.
80. The new Schedule sets out a higher rate of fares allowance, reflecting the increases in the Australian Public Service motor vehicle allowance made by Public Service Determination 1989/178. (See also the amendment to Schedule 6 made by subregulation 28(1) of these Regulations.)
Regulation 27: Non-reduction
81. Regulation 27 provides that a student’s entitlement is not to be reduced retrospectively by provisions in these Regulations that could otherwise adversely affect pre-existing entitlements.
82. As student assistance is administered on a calendar year basis, regulation 27 preserves a student’s pre-existing entitlement up to the end of 1990.
Regulation 28: Application
83. Regulation 28 modifies the application of the Principal Regulations before these Regulations came into operation.
84. Subregulation 28(1) modifies the application of Schedule 6 of the Principal Regulations, which sets out the fares allowance payable where public transport is unavailable and a student travels by private vehicle (see subregulations 47(10) and (11) of the Principal Regulations).
85. Subregulation 28(1) increases the fares allowance payable during the period 4 December 1988 to 3 December 1989. This follows increases in the Australian Public Service motor vehicle allowance made by Public Service Determination 1988/241. (See also regulation 26 of these Regulations, which amends Schedule 6 with effect from 3 December 1989.)
86. Subregulation 28(2) provides that, for 1989, the University of Western Sydney is taken to have come within the definition of “university” in regulation 4A. (Regulation 4A was repealed by Statutory Rules No. 403 of 1989, with effect from 1 January 1990, being replaced by the definition of “higher education institution”.)