EXPLANATORY STATEMENT
Issued by the authority of the Minister for Employment and Education Services
STATUTORY RULES NO. 402 of 1981
STUDENT ASSISTANCE REGULATIONS (AMENDMENT)
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 36 of the Act provides that the Governor-General may make regulations for the purposes of the Act.
Changes to AUSTUDY
3. The present Statutory Rules make a number of changes to AUSTUDY implementing decisions taken in the 1989 Budget context and correcting minor anomalies in the scheme. The changes are as follows:
• increases in living allowance and assets test levels
• the income test to apply to a student’s spouse or parents in the period for which entitlement is being assessed, rather than to the spouse or parents as at the beginning of the year
• the parental income test generally to apply to a spouse or de facto spouse of a student’s natural or adoptive parent
• the parental income test not to be applicable to a student’s de facto spouse
• the spouse and parental income tests to apply to income derived in an external territory or foreign country where there is no income tax regime
• removal of a reference to future parental support from the criteria for qualifying as independent on the basis of homelessness
• a student not to qualify as independent on the basis of homelessness if a de facto spouse is receiving a dependent spouse allowance in respect of the student
• a student not to qualify as an isolated secondary student if his or her parents live outside Australia
• repeal of a concession relating to TAFE studies undertaken before 1974
• AUSTUDY not to be payable for a period before the student’s classes begin in a year if the student received unemployment or similar benefit for the period in question
Changes to Post-graduate Awards
4. The amendments modify the Post-graduate Awards scheme by increasing the level of living allowances, establishment allowance and incidentals allowance.
5. The amendments also reflect the phasing out of Research Awards and Advanced Education Institution Awards:
• The Government is devolving the administration of research awards to individual institutions.
• Advanced Education Institution Awards are being phased out as a separate category of Award, following the end of the binary system of funding higher education.
Commencement
6. The amendments all take effect from 1 January 1990.
Details of the amendments
7. Details of the amendments are attached.
DETAILS OF AMENDMENTS
Regulation 1: Commencement
8. Regulation 1 provides that all the amendments take effect from 1 January 1990.
Regulation 2: Principal Regulations
9. The Student Assistance Regulations are referred to as the “Principal Regulations”.
Regulation 3: Interpretation: general
10. Regulation 3 amends existing regulation 3 of the Principal Regulations, which defines expressions used in the Principal Regulations.
11. Paragraph 3(a) modifies the definition of “child” to exclude a person who is a party to a training agreement or who qualifies as independent under AUSTUDY (or would qualify as independent if the relevant provision, regulation 30 of the Principal Regulations, applied to the person).
12. The former requirement, that a “child” be under 25, is omitted as it is now unnecessary. (If a person is 25 or over, he or she would qualify as independent under existing regulation 30(1)(a).)
13. The former requirement, that a “child” not be engaged in employment, is omitted.
14. Paragraph 3(b) modifies the definition of “child” to insert a reference to the child of a person’s cohabitant, so that a person’s “child” may include the child of the person’s de facto spouse. A definition of “cohabitant” is inserted into existing regulation 3 of the Principal Regulations.
15. Paragraph 3(c) inserts a definition of “cohabitant”, which is defined as a de facto spouse. This concept is needed because the definition of “spouse” in existing regulation 3 of the Principal Regulations only recognises a de facto relationship if it has continued for at least two years (or if there is a child of the relationship).
16. Paragraph 3(d) recasts the definition of “parents” to take account of a natural or adoptive parent’s spouse or de facto spouse (see the new definition of “cohabitant” inserted by regulation 3(c) of these Statutory Rules and the new subregulation 3(3)).
17. Paragraph 3(e) adds two new provisions, subregulations 3(2) and (3).
18. New subregulation 3(2) provides that a person is to be taken as unmarried if the person is living separately and apart from the husband or wife; this replaces the former regulation 31A(1). The expression “separately and apart” refers to a separation on a permanent basis and does not include temporary separations, eg where one spouse goes on a business trip.
19. Subregulation 3(3) provides that the spouse or de facto spouse of a student’s parent is to be prima facie taken to be supporting the student. This means that the spouse or de facto spouse will be taken to be a parent of the student (see the new definition of “parent” inserted by paragraph 3(d) of the present Statutory Rules).
Regulation 4
20. Regulation 4 amends existing regulation 29 of the Principal Regulations, which defines expressions used in Part III of the Principal Regulations.
21. Paragraph 4(a) clarifies the definition of “grantee”. A grantee is a student who meets the conditions in Division 1A of Part III of the Principal Regulations, and so is eligible for the grant of AUSTUDY under Division 2 of Part III.
22. Paragraph 4(b) inserts a reference to Part XIII of the Social Security Act into paragraph (a)(v) of the definition of “income” in existing regulation 29(1). This has the effect of excluding unemployment benefit, job search allowance, sickness benefit and special benefit from the definition of a student’s income.
23. Where a student receives such a benefit or allowance for a period before his or her course starts in the year, there will be no overlap with AUSTUDY: see new regulation 43BB (inserted by regulation 15 of the present Statutory Rules). If such benefits are received after the course starts, there is an overpayment under the Social Security Act which can be offset against the student’s AUSTUDY entitlement (see section 31A(b) of the Act).
24. Paragraph 4(c) amends subparagraph (b)(i) of the definition of “income” in existing regulation 29(1) of the Principal Regulations, to bring it into line with current drafting style.
25. Paragraph 4(d) extends the definition of “income” for a student’s spouse or parent to include income derived in an area where no income tax regime applies. This means that income derived in Norfolk Island, for example, Will be included for income test purposes.
Regulation 5: Independent status
26. Regulation 5 amends existing regulation 30 of the Principal Regulations, which sets out the criteria for qualifying as independent.
27. Paragraph 5(a) amends existing regulation 30(1A)(c)(ii), which provides that a student cannot qualify as independent on the basis of being homeless if the student’s parents are continuing to support the student. The amendment omits a reference to whether it is likely that the parents will provide support in the near future.
28. Paragraph 5(b) makes a drafting change, consequential on the addition of paragraph 30(lA)(e) of the Principal Regulations (by paragraph 5(c) of the present Statutory Rules).
29. Paragraph 5(c) adds a provision that a student cannot qualify as independent on the basis of homelessness if the student’s de facto spouse is receiving a payment in respect of the student. For example, the student does not qualify as homeless if the student’s de facto spouse receives the married rate of unemployment benefit because of his or her relationship with the student.
Regulation 6
30. The new regulation 6 amends existing regulation 31, which sets out the conditions under which a general secondary student may qualify as an isolated student. Isolated students are entitled to living allowance at the higher away-from-home rate.
31. New regulation 6 provides that a student may qualify as isolated only if his or her parents live in Australia or in Christmas Island.
32. Christmas Island is included as part of Australia for AUSTUDY purposes as income tax and income maintenance provisions are being phased into the Territory (see also section 5(2) of the Act).
Regulation 7: Repeal
33. Regulation 7 repeals regulations 31A and 31B of the Principal Regulations; these made special provision for the separation of spouses and parents.
34. Former regulation 31A(1) is replaced by new regulation 3(2) (inserted by regulation 3(e) of the present Statutory Rules).
35. The other provisions in former regulations 31A and 31B are unnecessary because of amendments in these Statutory Rules modifying the income test so that it generally takes account of any changes in a student’s spouse or parents during the year (rather than applying to the student’s situation as at 1 January of the year, as was previously the case).
Regulation 8: Ineligibility: previous study and other reasons
36. Regulation 8 amends existing regulation 34 of the Principal Regulations, which sets out the various grounds for ineligibility for AUSTUDY on the basis of a student’s academic history.
37. Regulation 34 is amended by omitting a reference to existing regulation 34B of the Principal Regulations, consequential on the repeal of regulation 34B by regulation 9 of these Statutory Rules.
Regulation 9: Repeal
38. Regulation 9 repeals regulation 34B of the Principal Regulations. The former regulation 34B provided that a student’s eligibility should not be affected by TAFE studies undertaken before 1974, when TEAS (the Tertiary Education Assistance Scheme) commenced.
39. The concession in regulation 34B was essentially a transitional provision, to avoid perceived anomalies in the replacement of the Commonwealth Technical Scholarships by TEAS (these scholarships provided significantly lower benefits than TEAS). The concession originally assisted a significant number of students, but now affects only one or two students a year.
Regulation 10; Living allowance: students of independent status
40. Regulation 10 amends existing regulation 41 of the Principal Regulations, which provides for the payment of living allowance to independent students.
41. Paragraph 10(a) amends existing regulation 41 by omitting the provision that the spouse’s income test should apply only to a person who was the student’s spouse on 1 January of the year of study. The income test will now apply to a spouse in calculating the student’s entitlement from the day when the student acquired the spouse.
42. Paragraph 10(b) amends existing regulation 41(5), which deals with the payment of the dependent spouse allowance. It adds a provision that the dependent spouse allowance is not payable if the spouse is receiving student assistance.
43. This restriction only applies if the student assistance is paid for the spouse’s own studies. For example, no account is to be taken if an allowance is being paid to the spouse for his or her child.
Regulation 11: Living allowance: spouse’s income concession
44. Regulation 11 amends existing regulation 41A of the Principal Regulations, which provides concessions where a spouse’s income falls substantially or the spouse receives a Social Security pension or similar payment. The amendment is consequential on the amendment to existing regulation 41(3) (see paragraph 10(a) of these Statutory Rules).
Regulation 12: Living allowance: students not of independent status
45. Regulation 12 amends existing regulation 42 of the Principal Regulations, which provides for the payment of living allowance to non-independent students.
46. Paragraph 12(a) corrects a punctuation mistake in existing regulation 42(6)(a) of the Principal Regulations.
47. Paragraph 12(b) is consequential on the repeal of existing regulation 34B of the Principal Regulations by regulation 9 of these Statutory Rules.
48. Paragraph 12(c) omits the provision that the parental income test should apply only to a student’s parents as at 1 January of the year of study. The income test will now apply to the student’s parents during the year, taking account of the loss of a parent or the gaining of a new parent.
49. However, the income test will not apply to a person who becomes a parent during the relevant year through becoming the spouse of a parent or other person having a parental-type relationship to the student (unless this is at the same time that the parent or other person separated from a previous spouse).
50. Two examples may clarify this latter point:
• Anne’s mother is a widow. Her mother marries during the year. Anne’s step-father is not taken into account in calculating her entitlement for the remainder of the relevant year.
• Bill lives with his mother and father. The father leaves to live with anther woman. Later in the year Bill moves in with his father. Bill’s new step-mother is taken into account in assessing his entitlement for the remainder of the year.
51. Paragraph 12(d) is consequential on the amendments to existing regulation 42(7) (made by paragraph 12(c) of these Statutory Rules).
52. Paragraph 12(e) makes a drafting change consequential on the repeal of subparagraphs 42(8)(a)(iii) and (iv) (by paragraph 12(f) of these Statutory Rules).
53. Paragraph 12(f) omits subparagraphs 42(8)(a)(iii) and (iv). These provisions have in effect been moved to the definition of “child” in regulation 3 of the Principal Regulations (see paragraph 3(a) of these Statutory Rules). As subregulation 42(8) picks up the definition of “child”, through the terms “brother” and “sister”, subparagraphs 42(8)(a)(iii) and (iv) are now unnecessary.
Regulation 13: Living allowance: parental income concession
54. Regulation 13 amends existing regulation 42A of the Principal Regulations, which provides concessions to the parental income test where a parent’s income has substantially fallen, where a student has lost a parent by death or separation, or where a parent is receiving a Social Security pension or similar payment.
55. These amendments are consequential on the amendments to existing regulation 42(7), which apply the parental income test on the basis of a student’s current parents rather than to the parents as at 1 January of the year of study (see paragraphs 12(c) and (d) of the present Statutory Rules).
Regulation 14: Living allowance: benefits under Social Security Act
56. Regulation 14 inserts a new regulation 43BB into the Principal Regulations. The new regulation deals with the situation where a student qualifies for unemployment benefit, job search allowance, sickness benefit or special benefit before classes in his or her course commence in the relevant year.
57. In this case, the student is not be entitled to receive AUSTUDY living allowance for the period while the Social Security allowance is payable. (Formerly the student would have been regarded as having been overpaid the Social Security payment, and the overpayment would have been offset against the student’s AUSTUDY entitlement under section 31A of the Act.)
Regulation 15: Number of Awards to be granted each year
58. Regulation 15 amends existing regulation 52 of the Principal Regulations, which requires the Minister to determine the number of Post-graduate Awards to be awarded each year.
59. The amendment removes references to Research Awards or Advanced Education Institution Awards as no new Awards are being granted in these categories (see paragraph 5 above).
Regulation 16: Repeal
60. Regulation 16 repeals regulations 53, 54 and 56 of the Principal Regulations, which deal with the methods for distributing new Research Awards and Advanced Education Institution Awards. No new Awards are being granted in these categories (see paragraph 5 above).
Regulation 17: Incidentals allowance
61. Regulation 17 substitutes a new regulation 71 in place of the existing regulation 71 of the Principal Regulations, which deals with the payment of incidentals allowance under Post-graduate Awards.
62. The new regulation 71 raises the incidentals allowance to $105 a year. The allowance was formerly $100 a year for Research and Course Awards and $70 a year for Advanced Education Institution Awards.
63. The new rate applies to all categories of Awards, reflecting the phasing out of Research and Advanced Education Institution Awards (see paragraph 5 above).
Regulation 18: Further amendments of the Principal Regulations
64. Regulation 18 makes a number of amendments set out in the Schedule to the present Statutory Rules. These increase the following amounts:
• the AUSTUDY maximum allowances (amendments to existing regulation 29AA(5))
• the AUSTUDY assets test thresholds (amendments to existing regulation 42B)
• the Post-graduate Award living allowances (amendments to existing regulation 70)
• the Post-graduate Award establishment allowance (amendments to existing regulation 73).