Commonwealth Consolidated Acts Commonwealth Consolidated Acts
1 Section 3 (index)
Insert the following entries in their appropriate alphabetical position, determined on a letter - by - letter basis:
higher education institution | 23(1) |
TAFE institution | 23(1) |
2 Section 3 (entry relating to living at home)
After "1067E", insert "and 1067J".
3 Section 3 (entry relating to long term income support student)
After "1067F", insert "and 1067K".
4 Subsection 23(1)
Insert:
"higher education institution" means an institution that is a higher education institution for the purposes of the Student Assistance Act 1973 .
5 Subsection 23(1)
Insert:
"TAFE institution" means an institution that is a technical and further education institution for the purposes of the Student Assistance Act 1973 .
6 Before Part 2.12
Insert:
Division 1 -- Qualification for austudy payment
Subdivision A -- Basic qualifications
568 Qualification for austudy payment--general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B); and
(b) the person is of austudy age (see Subdivision C); and
(c) the person satisfies the residency requirements that apply to the person under Subdivision D.
Note: Division 2 sets out situations in which an austudy payment is not payable even if the person qualifies for it.
568A Qualification for austudy payment--transferee from social security pension
If:
(a) a person was receiving a social security pension; and
(b) the person claims an austudy payment within 14 days after the day on which the last instalment of the person's pension was paid; and
(c) the person becomes qualified for an austudy payment at some time during the 14 day period but after the first day of that period;
the person is taken to be qualified for an austudy payment for the whole of the 14 day period.
Subdivision B -- Activity test
General
(1) Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).
Persons who do not satisfy the activity test
(2) A person cannot be taken to satisfy the activity test if the person:
(a) is employed on a full - time basis as an apprentice or trainee under an industrial instrument and has a training agreement (however described) with a training authority (by whatever name called) of a State or Territory; or
(b) has completed a course for:
(i) a degree of Master or Doctor at an educational institution; or
(ii) a qualification at a foreign institution that is, in the Secretary's opinion, of the same standing as a degree of Master or Doctor at an educational institution.
Note: For educational institution see subsection 23(1).
Industrial instrument
(3) In paragraph (2)(a):
"industrial instrument" means an award or agreement (however described) that:
(a) is made under or recognised by a law of the Commonwealth or of a State or Territory that:
(i) regulates the relationships between employers and employees; or
(ii) provides for the prevention or settlement of disputes between employers and employees; and
(b) concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees.
569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re - enrol in the course when re - enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b) the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c) the person is a full - time student or a concessional study - load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H).
569B Approved course of education or study
For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973 , to be a secondary course or a tertiary course for the purposes of that Act.
For the purposes of this Subdivision, a person is a full - time student in respect of a course if:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least three quarters of the normal amount of full - time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least three quarters of the normal amount of full - time study in respect of the course for that period.
Note: For normal amount of full - time study see section 569E.
569D Concessional study - load students
(1) For the purposes of this Subdivision, there are 2 classes of concessional study - load students, namely:
(a) 25% concessional study - load students; and
(b) 66% concessional study - load students.
(2) For the purposes of this Subdivision, a person is a 25% concessional study - load student in respect of a course if this subsection applies to the person and:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least one quarter, but less than three quarters, of the normal amount of full - time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least one quarter, but less than three quarters, of the normal amount of full - time study in respect of the course for that period.
(3) For the purposes of this Subdivision, a person is a 66% concessional study - load student in respect of a course if this subsection applies to the person and:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least two thirds, but less than three quarters, of the normal amount of full - time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least two thirds, but less than three quarters, of the normal amount of full - time study in respect of the course for that period.
Note: For normal amount of full - time study see section 569E.
(4) Subsection (2) applies to a person if:
(a) an officer in the Commonwealth Rehabilitation Service has stated in writing that:
(i) the person has a substantial physical disability; and
(ii) the person cannot successfully undertake the normal amount of full - time study in respect of the course because of the disability; or
(b) a medical practitioner specialising in psychiatry has stated in writing that:
(i) the person has a substantial psychiatric disability; and
(ii) the person cannot successfully undertake the normal amount of full - time study in respect of the course because of the disability; or
(c) a psychologist who is registered with the Australian Psychological Society has stated in writing that the person:
(i) is intellectually disabled; and
(ii) cannot successfully undertake the normal amount of full - time study in respect of the course because of the disability.
(5) Subsection (3) applies to a person if:
(a) the person cannot undertake the course as a full - time student because of:
(i) the relevant educational institution's usual requirements for the course; or
(ii) a specific direction in writing to the person from the academic registrar or an equivalent officer; or
(b) the academic registrar (or an equivalent officer) of the relevant educational institution recommends in writing that the person undertake less than the normal amount of full - time study in respect of the course for specified academic or vocational reasons for a period not exceeding half an academic year.
569E Normal amount of full - time study
(1) For the purposes of this Subdivision, the normal amount of full - time study in respect of a course is:
(a) if the course is a designated course of study within the meaning of Chapter 4 of the Higher Education Funding Act 1988 --the standard student load determined in respect of the course by the institution in question under subsection 39(2) of that Act; or
(b) if the course is not such a designated course and the institution defines an amount of full - time study that a full - time student should typically undertake in respect of the course--the amount so defined; or
(c) otherwise--an amount of full - time study equivalent to the average amount of full - time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
(2) Without limiting subsection (1), the normal amount of full - time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.
569F First fortnight of classes
A person is taken to be undertaking full - time study or a concessional study - load (as the case may be) in respect of a course during the period (the relevant period ):
(a) starting on the first day of classes in a study period; and
(b) ending on the Friday of the second week of classes in the study period;
if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.
569G Progress rules--secondary students
General rule
(1) Subject to subsection (2), a person enrolled in, or intending to enrol in, a secondary course satisfies the progress rules for the purposes of paragraph 569A(d) if, in the Secretary's opinion, the person is making satisfactory progress towards completing the course.
Students repeating year 12
(2) A person does not satisfy the progress rules if:
(a) the person is enrolled in a secondary course that is at year 12 level, or the overall level of which is at year 12 level (see subsections (3) and (4)); and
(b) the person has been a full - time student in respect of a course at that level (a previous course ) in each of 2 previous years; and
(c) none of the following circumstances apply:
(i) the person failed a previous course because of an illness that had not been diagnosed when the person began that course;
(ii) the person failed a previous course because of other circumstances beyond the person's control that were not apparent when the person began that course;
(iii) the person failed a previous course because English is not the person's native language;
(iv) the person completed or discontinued a previous course within 6 months after the relevant academic year started;
(v) each of the previous courses was undertaken more than 10 years before the present study.
Course at year 12 level
(3) A secondary course is at year 12 level if the institution in which the course is undertaken regards it as being at year 12 level.
Overall level of course at year 12 level
(4) The overall level of a secondary course is at year 12 level if the institution in which the course is undertaken regards at least 50% of the course as being at year 12 level.
Meaning of secondary course
(5) For the purposes of this section, a course is a secondary course if the Employment Minister has determined, under section 5D of the Student Assistance Act 1973 , that the course is a secondary course for the purposes of that Act.
569H Progress rules--tertiary students
Full - time students
(1) A person who is a full - time student in respect of a tertiary course satisfies the progress rules if:
(a) in the case of a person who is enrolled in the course--on the day on which the person enrolled in the course; or
(b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course--on the day on which enrolments in the course are next accepted;
the time already spent by the student on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course.
Note: For allowable study time for a course see subsection (3).
Concessional study - load students
(2) A person who is a concessional study - load student in respect of a tertiary course satisfies the progress rules if:
(a) in the case of a person who is enrolled in the course--on the day on which the person enrolled in the course; or
(b) in the case of a person who is not yet enrolled in the course but intends to enrol in the course--on the day on which enrolments in the course are next accepted;
the time already spent by the person on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for the course.
Note: For allowable study time for a course see subsections (3) and (4).
Allowable study time--full - time students and 66% concessional study - load students
(3) The allowable study time for a course undertaken by a full - time student or a 66% concessional study - load student is:
(a) if the minimum amount of time needed to complete the course as a full - time student is one year or less--that minimum amount of time; or
(b) if the minimum amount of time needed to complete the course as a full - time student is more than 1 year and:
(i) the student is enrolled, or intends to enrol, in a year - long subject; or
(ii) the student's further progress in the course depends on passing a whole year's work in the course;
the minimum amount of time plus 1 year; or
(c) in any other case--the minimum amount of time needed to complete the course as a full - time student plus half an academic year.
Allowable study time--25% concessional study - load students
(4) The allowable study time for a course undertaken by a 25% concessional study - load student is twice the minimum period in which it is possible to complete the course as a full - time student but the Secretary may approve, in particular cases, an allowable study time of up to four times the minimum period in which it is possible to complete the course as a full - time student.
Time spent by person studying part - time
(5) If a student has studied part - time for a course over a certain period, the time spent by the student on that course is taken to be the proportion of that period calculated by using the formula:
where:
"normal full-time study" means the normal amount of full - time study for the course.
"study undertaken" means the amount of study undertaken part - time by the student for the course.
Current full - time students who have previously undertaken courses as concessional study - load students
(6) If:
(a) a person is undertaking a course as a full - time student; and
(b) the person has previously undertaken:
(i) part of the course; or
(ii) one or more than one other course at the same level as that course;
as a concessional study - load student; and
(c) the time spent by the person undertaking the part of the course referred to in subparagraph (b)(i), or the course or courses referred to in subparagraph (b)(ii), (the previous study ) is not to be disregarded under subsection (7);
the time spent by the person undertaking the previous study is taken to be equal to the minimum amount of time that a full - time student would have taken to complete the previous study.
Matters to be disregarded in determining whether someone has exceeded the allowable study time
(7) In determining whether a person has exceeded the allowable study time (for a full - time student or a concessional study - load student), disregard the following:
(a) if the person has completed a course (a pre - requisite course) the completion of which is the normal requirement for admission to the course in which the person is enrolled or intends to enrol--time spent undertaking the pre - requisite course;
(b) a failed year of study, or a failed part of a year of study, if the failure is because of:
(i) the person's illness; or
(ii) other circumstances beyond the person's control;
(c) time spent undertaking a course that has been permanently discontinued because of:
(i) the person's illness; or
(ii) other circumstances beyond the person's control;
(d) time spent undertaking a course that has been completed but which, because of the person's illness, the person cannot use in any of the trades or profession to which the course is appropriate;
(e) time spent undertaking a TAFE course if the normal length of the course for a full - time student is one year or less;
(f) time spent undertaking a course more than 10 years ago, unless the course has since been completed;
(g) time spent undertaking a course after 1973 if the course was not:
(i) approved for the Tertiary Education Assistance Scheme; or
(ii) approved for the AUSTUDY scheme; or
(iii) an approved course for the purposes of paragraph 541B(1)(c), 569A(b) or 1061PB(1)(b) of this Act;
(h) time spent undertaking a course at a foreign institution;
(i) time spent undertaking a subject from which the student withdrew, if the educational institution in which the subject was undertaken did not record the withdrawal from the subject as a failure;
(j) any time spent undertaking a course during which the person was ineligible to receive:
(i) AUSTUDY; or
(ii) a benefit under the Tertiary Education Assistance Scheme; or
(iii) youth allowance; or
(iv) austudy payment;
because of the application of rules in respect of academic progress.
Levels of tertiary courses
(8) There are 4 levels of tertiary courses, levels A, B, C and D.
Level A courses
(9) The following are Level A courses:
(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.
Level B courses
(10) The following are Level B courses:
(a) a bachelor degree course (other than a postgraduate course), with or without honours;
(b) the bachelor level component of a masters degree course with concurrent bachelor and masters level study;
(c) 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;
(d) a Master's qualifying course;
(e) 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.
Level C courses
(11) The following are Level C courses:
(a) an associate degree course;
(b) an associate diploma course;
(c) a diploma course at a TAFE institution for which an entry requirement is successful completion of year 12 of secondary studies;
(d) a 2 - year undergraduate diploma course.
Level D courses
(12) The following are Level D courses:
(a) a TAFE course at a higher education institution;
(b) a TAFE course, unless the course is in Level A, B or C.
Meaning of tertiary course
(13) For the purposes of this section, a course is a tertiary course if the Employment Minister has determined, under section 5D of the Student Assistance Act 1973 , that the course is a tertiary course for the purposes of that Act.
General
(1) Subject to subsection (2), a person is of austudy age for the purposes of this Part if the person is at least 25 years old.
Study begun before turning 25
(2) Even if the person is at least 25 years old, the person is taken not to be of austudy age if the person:
(a) was receiving youth allowance immediately before turning 25; and
(b) has not yet attained the maximum age for youth allowance (see subsection 543B(2)).
571 Requirements relating to residency
The requirements that apply to a person relating to residency in respect of a period are that, throughout the period, the person:
(a) is an Australian resident; and
(b) subject to this Subdivision, is in Australia.
571A Absence overseas of persons undertaking qualifying study
General
(1) Paragraph 571(b) does not apply to a person if the person is undertaking qualifying study and:
(a) is absent from Australia for the purpose of undertaking part of the studies for the course of education in respect of which the person is undertaking qualifying study; or
(b) is absent from Australia, for any other purpose, for not more than 26 weeks.
Temporary return to Australia
(2) If the person:
(a) returns to Australia after having been outside Australia (whether before or after the commencement of this section) for more than 13 weeks; and
(b) leaves Australia before the end of 13 weeks after he or she so returned to Australia;
the person is taken, for the purposes of paragraph (1)(b), to have continued to be absent from Australia throughout the period from the time of the return to the time when the person so left Australia.
Division 2 -- Situations in which austudy payment is not payable
Subdivision A -- The basic rules
572 Situations in which austudy payment is not payable
An austudy payment is not payable to a person who is qualified for austudy payment:
(a) if the value of the person's assets exceeds the person's assets value limit (see Subdivision B); or
(b) before the person's provisional commencement day (see Subdivision C); or
(c) while the person is subject to a waiting period (see Subdivision D); or
(d) while an activity test non - payment period applies to the person (see Subdivision E); or
(e) while the person is subject to an administrative exclusion (see Subdivision F); or
(f) while the person is subject to a multiple entitlement exclusion (see Subdivision G); or
(g) while the person's austudy payment rate would be nil.
Note 1: An austudy payment is not payable if the person is in gaol or is undergoing psychiatric confinement because the person has been charged with committing an offence (see Division 2 of Part 3.13).
Note 2: An austudy payment is not payable to a person if the person is subject to a compensation preclusion period (see Part 3.14).
573 Austudy payment not payable if assets value limit exceeded
An austudy payment is not payable to a person if:
(a) the person is not excluded from the application of the austudy payment assets test; and
(b) the value of the person's assets is more than the person's assets value limit.
Note 1: For persons excluded from application of test see section 573A.
Note 2: For assets value limit see section 573B.
573A Who is excluded from application of assets test
A person is excluded from the application of the austudy payment assets test if the person's partner is receiving:
(a) a payment of pension, benefit or allowance referred to in the table at the end of this section; or
(b) a payment under Part 5 or 6 of the Farm Household Support Act 1992 .
Table of pensions, benefits and allowances | ||
Item | Type of pension, benefit and allowance | |
1 | Age pension | (Part 2.2) |
2 | Service pension (age) | (Section 36 of the Veterans' Entitlements Act) |
3 | Defence widow's pension--if the widow has no dependent children | (Section 70 of the Veterans' Entitlements Act) |
4 | War widow's pension--if the widow has no dependent children | (Section 13 of the Veterans' Entitlements Act) |
5 | Mature age allowance | (Part 2.12A or 2.12B) |
6 | Rehabilitation allowance | (Clause 35 of Schedule 1A) |
7 | Commonwealth allowance | (New Enterprise Incentive Scheme (NEIS)) |
8 | Carer payment | (Part 2.5) |
9 | Service pension (carer) | (Section 39 of the Veterans' Entitlements Act) |
10 | Defence widow's pension--if the widow has a dependent child | (Section 70 of the Veterans' Entitlements Act) |
11 | Disability support pension | (Part 2.3) |
12 | Service pension (invalidity) | (Section 37 of the Veterans' Entitlements Act) |
13 | War widow's pension--if the widow has a dependent child | (Section 13 of the Veterans' Entitlements Act) |
14 | Newstart allowance | (Part 2.12) |
15 | Sickness allowance | (Part 2.14) |
16 | Special benefit | (Part 2.15) |
17 | Benefit PP (partnered) | (Part 2.10) |
(1) A person's assets value limit is:
(a) $125,750 if the person:
(i) is not a member of a couple (see section 4); and
(ii) is a homeowner; or
(b) $215,750 if the person:
(i) is not a member of a couple; and
(ii) is not a homeowner; or
(c) $178,500 if the person:
(i) is a member of a couple; and
(ii) is a homeowner; or
(d) $268,500 if the person:
(i) is a member of a couple; and
(ii) is not a homeowner.
Note 1: For homeowner see subsection 11(4).
Note 2: The amounts in this section are indexed annually on 1 July (see sections 1191 to 1194).
(2) If the Secretary determines in writing a higher amount in substitution for an amount specified in subsection (1) (the existing amount ), the higher amount is taken, from the commencement of this section, to have been substituted for the existing amount. A determination under this subsection is a disallowable instrument.
(3) Subsection (2) and this subsection are repealed at the end of 31 December 1998.
573C Value of person's assets to include value of assets of partner
The value of a person's assets is the sum of the following values:
(a) the value of the person's assets (disregarding paragraph (b));
(b) if the person is a member of a couple (see section 4)--the value of the assets of the person's partner.
Sections 573D and 573E apply for the purpose of working out the value of the person's assets and of his or her partner (if any).
573D Assets of trust in which person benefits
A person's assets include:
(a) any benefit to which the person is entitled 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 which has been assigned to someone else but which the person can directly or indirectly control.
573E Exclusion of certain farm assets
If:
(a) an exceptional circumstances certificate referred to in section 8A of the Farm Household Support Act 1992 was issued in respect of a person; and
(b) the certificate has effect;
the person's assets do not include any asset that is an exempt asset in respect of the person within the meaning of that Act.
Subdivision C -- Provisional commencement day
574 Provisional commencement day--basic rule
Subject to this Subdivision, a person's provisional commencement day is the day on which the person claims an austudy payment.
Subject to section 574B, if:
(a) a person makes a claim ( initial claim ) for:
(i) a social security pension, a social security benefit (other than an austudy payment) or a service pension; or
(ii) a pension, allowance, benefit or other payment that is similar in character to an austudy payment under an Act other than this Act or under a program administered by the Commonwealth; and
(b) on the day on which the person makes the initial claim, the person is qualified for austudy payment; and
(c) the person afterwards makes a claim for austudy payment; and
(d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person;
the person's provisional commencement day is the day on which the person made the initial claim.
574B Provisional commencement day--transferee to austudy payment
If a person:
(a) is a transferee to austudy payment; and
(b) claims austudy payment within 14 days after the transfer day;
the person's provisional commencement day is the person's transfer day.
Note: For transferee to austudy payment and transfer day see subsections 23(6) and (7).
574C Provisional commencement day--application of section 577C or reduction of rate to nil
If:
(a) a person receives an austudy payment; and
(b) either:
(i) the person is subject to an administrative exclusion because of the application of section 577C; or
(ii) an administrative breach rate reduction period under Subdivision C of Division 5 applies to the person and the person's administrative breach reduced rate is a nil rate; and
(c) payment of the allowance is cancelled or automatically terminated; and
(d) the person lodges a claim for austudy payment within 14 days after the date of effect of the cancellation or automatic termination referred to in paragraph (c);
the person's provisional commencement day is the day after the date of effect of the cancellation or automatic termination.
574D Provisional commencement day--claim resulting from a major disaster
If a person:
(a) claims a disaster relief payment; and
(b) is qualified for the payment; and
(c) as a result of the major disaster to which the payment relates, claims austudy payment within 14 days after the day on which the person claimed the disaster relief payment;
the person's provisional commencement day is the day on which he or she was affected by the disaster.
Subdivision D -- Waiting periods
For the purposes of this Part, a person may be subject to the following waiting periods:
(a) a liquid assets test waiting period (see sections 575A, 575B and 575C);
(b) a newly arrived resident's waiting period (see sections 575D and 575E).
575A Liquid assets test waiting period
When person subject to liquid assets test waiting period--general
(1) Subject to this section, if:
(a) the value of a person's liquid assets is more than the person's maximum reserve on:
(i) the day on which the person becomes qualified for austudy payment; or
(ii) the day on which the person claims austudy payment; and
(b) the person is not a transferee to austudy payment;
the person is subject to a liquid assets test waiting period.
Note 1: For liquid assets and maximum reserve see section 14A.
Note 2: For transferee to austudy payment see subsections 23(6) and (7).
Exception--person already subject to liquid assets test waiting period in previous 12 months
(2) Subsection (1) does not apply to a person if, at any time during the 12 months before:
(a) the day on which the person becomes qualified for austudy payment; or
(b) the day on which the person claims austudy payment;
the person:
(c) was subject to a liquid assets test waiting period under this Part and that period has ended; or
(d) has served a liquid assets test waiting period under another Part of this Act; or
(e) has served a liquid assets test waiting period under the Student Assistance Act 1973 as previously in force.
Exception--waiver for hardship
(3) If the Secretary is satisfied that a person is in severe financial hardship because the person has incurred unavoidable or reasonable expenditure while serving a liquid assets test waiting period, the Secretary may determine that the person does not have to serve the whole, or any part, of the waiting period.
Note 1: For in severe financial hardship see subsections 19C(2) (person who is not a member of a couple) and 19C(3) (person who is a member of a couple).
Note 2: For unavoidable or reasonable expenditure see subsection 19C(4).
Exception--certain transferees to austudy payment
(4) Subsection (1) does not apply to a person if:
(a) the person is a transferee to austudy payment; and
(b) the person claims austudy payment within 14 days of the transfer day.
575B Start of liquid assets test waiting period
The liquid assets test waiting period of a person starts on the day on which the person became qualified for austudy payment.
575C Length of liquid assets test waiting period
Number of weeks
(1) A person's liquid assets test waiting period is:
(a) if the result obtained under subsection (2) is 13 or more whole weeks--13 weeks; or
(b) if the result obtained under subsection (2) is fewer than 13 whole weeks--the number of whole weeks obtained under that subsection.
Working out number of weeks
(2) Subject to subsection (3), the number of weeks is worked out by using the following formula:
where:
"divisor" , in relation to the person, means:
(a) if the person is not a member of a couple and does not have a dependent child--$500; or
(b) otherwise--$1,000.
"liquid assets" means the person's liquid assets on the day referred to in subparagraph 575A(1)(a)(i) or (ii) (as the case requires).
"maximum reserve amount" means the maximum reserve in relation to the person under subsection 14A(1).
Weeks etc. to be disregarded
(3) For the purposes of subsection (2), disregard:
(a) any weeks after the person claimed austudy payment during which the person was not qualified for austudy payment; and
(b) any fractions of a week.
575D Newly arrived resident's waiting period
Basic rule
(1) Subject to this section, a person is subject to a newly arrived resident's waiting period if the person:
(a) has entered Australia on or after 4 March 1997; and
(b) has not been an Australian resident in Australia for a period of, or periods totalling, 104 weeks.
Note: For Australian resident see subsection 7(2).
Exception--qualifying residence exemption
(2) Subsection (1) does not apply to a person who has a qualifying residence exemption for an austudy payment.
Note: For qualifying residence exemption see subsection 7(6).
Exception--person already subject to waiting period etc.
(3) Subsection (1) does not apply to a person if:
(a) the person has been subject to:
(i) a newly arrived resident's waiting period under this Act; or
(ii) a waiting period under Part 2 of the Student Assistance Act 1973 as in force immediately before 1 July 1998; or
(iii) a newly arrived resident's waiting period under Part 8 of the Student Assistance Act 1973 as in force immediately before 1 July 1998; and
(b) that period has ended.
(4) Subsection (1) does not apply to a person if:
(a) the person would:
(i) if the person had made a claim under this Act for a social security payment other than youth allowance--have been subject to a newly arrived resident's waiting period under this Act; or
(ii) if the person had, before 1 July 1998, made a claim under the Student Assistance Act 1973 --have been subject to a waiting period under Part 2 of that Act or a newly arrived resident's waiting period under Part 8 of that Act;
and that period would have ended; or
(b) the person has had:
(i) a qualifying residence exemption for a newstart allowance or a sickness allowance under this Act; or
(ii) a qualifying residence exemption for a youth training allowance under the Student Assistance Act 1973 ; or
(c) in the case of an AUSTUDY allowance recipient--the person was not subject to a waiting period.
575E Length of newly arrived resident's waiting period
If a person is subject to a newly arrived resident's waiting period, the period:
(a) starts on the day on which the person first entered Australia; and
(b) ends when the person has been an Australian resident in Australia for a period of, or periods totalling, 104 weeks after that day.
Note: For Australian resident see subsection 7(2).
575F Effect of being subject to 2 waiting periods
For the avoidance of doubt, if a person is subject to 2 waiting periods under this Subdivision, an austudy payment is not payable to the person until both of those waiting periods have ended.
Subdivision E -- Activity test non - payment periods
576 Third and subsequent activity test breaches lead to activity test non - payment period
An activity test non - payment period applies to a person if:
(a) the person commits an activity test breach ( latest breach ); and
(b) the latest breach is the third or subsequent activity test breach in the 2 years immediately before the day after the latest breach.
Note: If the latest breach is the first or second activity test breach in the 2 years before the latest breach, an activity test rate reduction period applies to the person (see Subdivision B of Division 5).
A person has committed an activity test breach if:
(a) the person fails to satisfy the activity test (see Subdivision B of Division 1); or
(b) the person refuses or fails, without reasonable excuse, to provide information in relation to the person's income from remunerative work when required to do so under this Act; or
(c) the person knowingly or recklessly provides false or misleading information in relation to the person's income from remunerative work when required to do so under this Act.
Note: An activity test breach may also arise under other sections of this Act and the Student Assistance Act 1973 as in force immediately before the commencement of section 576A of this Act (see subsection 23(1)).
576B Length of activity test non - payment period
Basic rule
(1) Subject to subsection (2), the length of an activity test non - payment period is 8 weeks.
Pre - existing non - payment period
(2) If, at the time of the commencement of an activity test non - payment period under this Part, the person is already subject to an activity test non - payment period ( pre - existing non - payment period ), the pre - existing non - payment period is taken to end immediately before the commencement of the activity test non - payment period under this Part.
576C Start of activity test non - payment period
Notice of start of period
(1) If an activity test non - payment period applies to a person under this Part, the Secretary must give the person a written notice telling the person of the start of the period.
(1A) A notice under subsection (1) must contain reasons why the activity test non - payment period applies to the person.
General rule
(2) Subject to subsection (3) of this section and section 576E, the activity test non - payment period starts on the day on which the notice is given to the person.
Austudy payment ceasing to be payable
(3) Subject to section 576E, if:
(a) on or before the day on which a person's activity test non - payment period would (apart from this subsection) have started, an austudy payment ceases to be payable to the person; and
(b) it has not ceased to be payable because of the application of an activity test non - payment period;
the activity test non - payment period starts on the day on which the austudy payment ceases to be payable to the person.
576D Interaction with activity test breach rate reduction periods
Application of section
(1) This section applies if, under this Part:
(a) an activity test non - payment period applies to a person; and
(b) during the whole or a part of that period, the whole or a part of an activity test breach rate reduction period ( overlap period ) applies to the person.
Note: An administrative breach rate reduction period may also apply to the person (see section 583C).
Overlap period
(2) Subject to subsection (4), the activity test non - payment period and the activity test breach rate reduction period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Subject to section 576E, only the non - payment restriction relating to the activity test non - payment period is to apply to the person during the overlap period.
Pre - existing activity test breach rate reduction period
(4) If, at the time of the commencement of an activity test non - payment period under this Part, the person is already subject to an activity test breach rate reduction period ( pre - existing reduction period ), the pre - existing reduction period is taken to end immediately before the commencement of the activity test non - payment period under this Part.
576E Interaction with waiting periods
Application of section
(1) This section applies if, under this Part:
(a) an activity test non - payment period applies to a person; and
(b) during the whole or a part of that period, the whole or a part of a waiting period ( overlap period ) applies to the person.
Note: An administrative breach rate reduction period may also apply to the person (see section 583C).
Overlap period
(2) The non - payment period and the waiting period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Despite any other provision of this Act, only the restriction on payment relating to the waiting period is to apply to the person during the overlap period.
576F Effect of sections 576C, 576D and 576E
For the avoidance of doubt, sections 576C, 576D and 576E do not prevent an austudy payment ceasing to be payable in circumstances that do not involve the application of an activity test non - payment period under this Part.
If, but for this section, an event would result in both an activity test penalty period and an administrative breach rate reduction period applying to a person under the provisions of this Act, only the provision imposing the activity test penalty period is to apply to the person.
Subdivision F -- Administrative exclusions
For the purposes of this Division, a person is subject to an administrative exclusion while one or more of sections 577A to 577D apply to the person.
Note: These sections apply because the person fails to do certain things. It is open to the person to end the administrative exclusion by doing those things.
577A Failure to comply with request to provide person's tax file number
Person must provide tax file number or employment declaration
(1) A person is subject to an administrative exclusion if:
(a) the Secretary has requested the person under section 579F or 586:
(i) to give the Secretary a written statement of the person's tax file number; or
(ii) to apply for a tax file number and give the Secretary a written statement of the person's tax file number once it has been issued; and
(b) at the end of 28 days after the request is made, the person has neither:
(i) given the Secretary a written statement of the person's tax file number; nor
(ii) given the Secretary an employment declaration and satisfied either subsection (2) or (3).
Person does not know tax file number
(2) A person satisfies this subsection if:
(a) the employment declaration states that the person:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform him or her of the number; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number--the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the person has no tax file number.
Application for tax file number pending
(3) A person satisfies this subsection if:
(a) the person's declaration states that the person has applied for a tax file number; and
(b) the person has given the Secretary a document authorising the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person--the tax file number; or
(ii) if the application is refused--that the application has been refused; or
(iii) if the application is withdrawn--that the application has been withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that the person has not applied for a tax file number; and
(d) the Commissioner of Taxation has not told the Secretary that an application by the person for a tax file number has been refused; and
(e) the application for a tax file number has not been withdrawn.
577B Failure to comply with request to provide partner's tax file number
Person must provide partner's tax file number
(1) Subject to subsection (4), a person is subject to an administrative exclusion if:
(a) the person is a member of a couple; and
(b) the person is requested under section 579G or 586A to give the Secretary a written statement of the tax file number of the person's partner; and
(c) at the end of 28 days after the request is made the person has neither:
(i) given the Secretary a written statement of the partner's tax file number; nor
(ii) given the Secretary a declaration by the partner in a form approved by the Secretary and satisfied either subsection (2) or (3).
Partner does not know tax file number
(2) The person satisfies this subsection if:
(a) the partner's declaration states that the partner:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform the partner of the partner's tax file number; and
(b) the person has given the Secretary a document signed by the partner that authorises the Commissioner of Taxation to tell the Secretary:
(i) whether the partner has a tax file number; and
(ii) if the partner has a tax file number--the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the partner has no tax file number.
Application for partner's tax file number pending
(3) The person satisfies this subsection if:
(a) the partner's declaration states that the partner has applied for a tax file number; and
(b) the person has given the Secretary a document signed by the partner that authorises the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the partner--the tax file number; or
(ii) if the application is refused--that the application has been refused; or
(iii) if the application is withdrawn--that the application has been withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that an application by the partner for a tax file number has been refused; and
(d) the application for a tax file number has not been withdrawn.
Secretary may waive requirement
(4) The Secretary may waive the request for a statement of the partner's tax file number if the Secretary is satisfied that:
(a) the person does not know the partner's tax file number; and
(b) the person can obtain none of the following from the partner:
(i) the partner's tax file number;
(ii) a statement of the partner's tax file number;
(iii) a declaration by the partner under subparagraph (1)(c)(ii).
577C Failure to attend the Department etc.--person required to satisfy activity test etc.
Requirement to attend the Department etc.
(1) Subject to subsection (2), a person is subject to an administrative exclusion if:
(a) a person is receiving, or has lodged a claim for, an austudy payment; and
(b) the Secretary is of the opinion that the person should:
(i) attend an office of the Department; or
(ii) contact the Department; or
(iii) give information to the Secretary; and
(c) the Secretary gives the person a written notice stating that the person is required, within a period stated in the notice, being a period of not less than 14 days, to:
(i) attend that office; or
(ii) contact that Department; or
(iii) give that information; and
(d) the requirement is reasonable; and
(e) the person does not comply with the requirement.
Content of notice
(1A) A notice under paragraph (1)(c) must inform the person to whom it is given of the effect of failure by the person to comply with the requirement set out in the notice without reasonable excuse.
Reasonable excuse for non - compliance
(2) The Secretary may determine that a person is not subject to an administrative exclusion under this section if the Secretary is satisfied that the person had a reasonable excuse for not complying with the requirement.
577D Failure to nominate account etc.
Period within which account is to be nominated
(1) A person is subject to an administrative exclusion if, at the end of the period ( preliminary period ) of 28 days starting on the day on which an austudy payment became payable to the person:
(a) no account has been nominated for the purposes of subsection 584E(2); and
(b) the Secretary has not given a direction under subsection 584E(4) in relation to the payment of instalments of the austudy payment to the person.
Cessation of administrative exclusion
(2) If an account is nominated for the purposes of subsection 584E(2) after the end of the preliminary period, then, subject to this Part, the person ceases to be subject to the administrative exclusion and the allowance is payable to the person:
(a) if the nomination was made within 3 months after the end of the preliminary period--on and from the first day after the end of that period; or
(b) otherwise--on and from the day on which the nomination was made.
Subdivision G -- Multiple entitlement exclusions
578 Multiple entitlement exclusions
For the purposes of this Division, a person is subject to a multiple entitlement exclusion if:
(a) the person is receiving an austudy payment and another social security benefit, a social security pension or a service pension becomes payable to the person; or
(b) a payment under a scheme referred to in section 578A has been or may be made to the person; or
(c) an assurance of support applies to the person (see section 578B); or
(d) the person has received, or may receive, income that is paid by a community or group from funds provided under a Commonwealth funded employment program.
Note: For Commonwealth funded employment program see subsection 23(1).
578A Person receiving payment under certain schemes
General
(1) Subject to subsection (2), the schemes for the purposes of paragraph 578(b) are:
(a) a prescribed educational scheme other than the ABSTUDY Tertiary Scheme to the extent that it applies to part - time students; and
(b) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; and
(c) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; and
(d) the scheme to provide an allowance known as the English as a Second Language Allowance to the extent that the scheme applies to full - time students; and
(e) a LEAP program.
Note 1: For prescribed educational scheme see section 5.
Note 2: For LEAP program see subsection 23(1).
Application made under ABSTUDY Scheme
(2) If:
(a) a person is undertaking qualifying study in respect of a course of education that is to last for 6 months or more; and
(b) an application is made for a payment in respect of the person under:
(i) the ABSTUDY Schooling Scheme; or
(ii) the ABSTUDY Tertiary Scheme; and
(c) the person was receiving an austudy payment immediately before the start of the course;
the Secretary may decide that the person is not subject to a multiple entitlement exclusion, because of subsection (1), before:
(d) the application is determined; or
(e) the end of the period of 3 weeks beginning on the day on which the course starts;
whichever happens first.
An assurance of support applies to a person if:
(a) an assurance of support is in force in respect of the person ( assuree ); and
(b) the person who gave the assurance was willing and able to provide an adequate level of support to the assuree; and
(c) it was reasonable for the assuree to accept that support.
Note: For assurance of support see subsection 23(1).
Division 3 -- Claim for austudy payment
Proper claim
(1) A person who wants to be granted an austudy payment must make a proper claim for the austudy payment.
Note: For proper claim see section 579A (form), sections 579B and 579C (manner of lodgment) and section 579D (residence/presence in Australia).
Claim taken not to be made
(2) For the purposes of subsection (1), if:
(a) a claim for an austudy payment is made by or on behalf of a person; and
(b) at the time the claim is made, the claim cannot be granted because the person is not qualified for austudy payment;
the claim is taken not to have been made.
To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary.
To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place in Australia approved for the purpose by the Secretary; or
(c) with a person in Australia approved for the purpose by the Secretary.
579C Claims by telephone, facsimile or computer
Contacting Department prior to lodging claim
(1) A person is taken to have lodged a claim in accordance with section 579B on the day on which the Department is contacted under paragraph (a) of this section if:
(a) the Department is contacted by or on behalf of the person by telephone, or by the transmission of a message by use of facsimile or computer equipment, in relation to making a claim for:
(i) an austudy payment; or
(ii) a disability support pension; or
(iii) a sickness allowance; or
(iv) a newstart allowance; and
(b) on that day, the person was qualified for an austudy payment; and
(c) the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to making the claim; and
(d) the person lodges a claim for a pension or allowance referred to in paragraph (a) within the period allowed under this section; and
(e) if the claim referred to in paragraph (d) is not a claim for an austudy payment--the person subsequently lodges a claim for an austudy payment; and
(f) either:
(i) the person gives the Secretary the notice referred to in paragraph (c) when lodging the claim referred to in paragraph (d); or
(ii) the Department has a written record that the notice referred to in paragraph (c) has been sent to the person.
Period for lodging claim
(2) Subject to subsection (3), for the purposes of paragraph (1)(d), the period is 14 days after the day on which the Department is contacted.
Extensions of period
(3) The Secretary may determine by written notice given to the person:
(a) within the 14 day period referred to in subsection (2); or
(b) within the period of any extension under this subsection;
that the period for the purposes of paragraph (1)(d) is extended for such further period as the Secretary considers reasonable.
Time Department taken to have been contacted
(4) For the purposes of this section, a person who contacts the Department by transmitting a message by use of facsimile or computer equipment is taken to have done so when the message is received in the Department.
579D Claimant must be Australian resident and in Australia
A claim by a person is not a proper claim unless the person is:
(a) an Australian resident; and
(b) in Australia;
on the day on which the claim is lodged.
Note: For Australian resident see subsections 7(2) and (3).
Withdrawal of claim
(1) A claimant for an austudy payment or a person on behalf of the claimant may withdraw a claim that has not been determined.
Effect of withdrawal
(2) A claim that is withdrawn is taken not to have been made.
Manner of withdrawal
(3) A withdrawal may be made orally or in writing.
579F Secretary may request claimant to give statement of claimant's tax file number
Request for claimant's tax file number etc.
(1) The Secretary may request but not compel a claimant for an austudy payment:
(a) if the claimant has a tax file number--to give the Secretary a written statement of the claimant's tax file number; or
(b) if the claimant does not have a tax file number:
(i) to apply to the Commissioner of Taxation for a tax file number; and
(ii) to give the Secretary a written statement of the claimant's tax file number after the Commissioner of Taxation has issued it.
Failure to satisfy request
(2) An austudy payment is not payable to a claimant if, at the end of 28 days after a request is made:
(a) the claimant has failed to satisfy the request; and
(b) the Secretary has not exempted the claimant from having to satisfy the request.
579G Secretary may request claimant to give statement of partner's tax file number
Request for partner's tax file number
(1) If:
(a) a claimant for an austudy payment is a member of a couple; and
(b) the claimant's partner is in Australia;
the Secretary may request but not compel the claimant to give the Secretary a written statement of the tax file number of the claimant's partner.
Failure to satisfy request
(2) An austudy payment is not payable to a claimant if, at the end of 28 days after a request is made:
(a) the claimant has failed to satisfy the request; and
(b) the Secretary has not exempted the claimant from having to satisfy the request.
Note 1: In some cases the request can be satisfied by giving the Secretary a declaration by the partner about the partner's tax file number and an authority by the partner to the Commissioner of Taxation to give the Secretary certain information relevant to the partner's tax file number (see subsections 577B(2) and (3)).
Note 2: The Secretary may waive the requirement in some cases (see subsection 577B(4)).
Division 4 -- Determination of claim
580 Secretary to determine claim
The Secretary must, in accordance with this Part, determine a claim for an austudy payment.
General rule
(1) The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for austudy payment; and
(b) the allowance is payable.
Person subject to waiting period etc.
(2) The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified, or is expected to be qualified, for austudy payment; and
(b) the austudy payment would be payable, apart from the application of:
(i) a waiting period; or
(ii) an activity test non - payment period; or
(iii) an activity test breach rate reduction period where the person's activity test breach reduced rate is a nil rate; or
(iv) an administrative breach rate reduction period where the person's administrative breach reduced rate is a nil rate; or
(v) an income maintenance period within the meaning of point 1067G - H11.
580B Date of effect of determination
Date of effect
(1) Subject to this section, a determination under section 580A takes effect on the day on which the determination is made or on any later day or earlier day that is stated in the determination.
Notified decision--review sought within 3 months
(2) If:
(a) a decision ( previous decision ) is made rejecting a person's claim for an austudy payment; and
(b) a notice is given to the person telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision--review sought after 3 months
(3) If:
(a) a decision ( previous decision ) is made rejecting a person's claim for an austudy payment; and
(b) a notice is given to the person telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 3 months after the notice is given, for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision ( previous decision ) is made rejecting a person's claim for an austudy payment; and
(b) no notice is given to the person telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a determination granting the claim is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Division 5 -- Rate of austudy payment
Subdivision A -- Rate of austudy payment
581 How to work out a person's austudy payment rate
Austudy Payment Rate Calculator in section 1067L
(1) Subject to this section, the rate of a person's austudy payment is to be worked out in accordance with the Austudy Payment Rate Calculator in section 1067L.
Activity test breach rate reduction period only
(2) Subject to subsection (4), if an activity test breach rate reduction period applies to the person, the person's rate of austudy payment for that period is to be worked out in accordance with Subdivision B.
Administrative breach rate reduction period only
(3) Subject to subsection (4), if an administrative breach rate reduction period applies to the person, the person's rate of austudy payment for that period is to be worked out in accordance with Subdivision C.
Activity test breach rate reduction period and administrative breach rate reduction period
(4) If both an activity test breach rate reduction period and an administrative breach rate reduction period apply to the person, the person's rate of austudy payment is to be worked out in accordance with Subdivisions B and C.
Subdivision B -- Activity test breach reductions in the rate of austudy payment
582 Activity test breach rate reduction period
An activity test breach rate reduction period applies to a person if:
(a) a person commits an activity test breach referred to in section 576A ( latest breach ); and
(b) the latest breach is the first or second activity test breach in the 2 years immediately before the day after the latest breach.
Note: If the latest breach is the third or subsequent activity test breach in the 2 years before the latest breach, an activity test non - payment period applies to the person (see Subdivision E of Division 2).
582A Length of activity test breach rate reduction period
Basic rule
(1) Subject to subsection (2), the length of an activity test breach rate reduction period is 26 weeks.
Pre - existing rate reduction period
(2) If, at the time of the commencement of an activity test breach rate reduction period under this Part, the person is already subject to an activity test breach rate reduction period ( pre - existing rate reduction period ), the pre - existing rate reduction period is taken to end immediately before the commencement of the activity test breach rate reduction period under this Part.
582B Start of activity test breach rate reduction period
Notice of start of period
(1) If an activity test breach rate reduction period applies to a person under this Part, the Secretary must give to the person a written notice telling the person of the start of the period.
(1A) A notice under subsection (1) must contain reasons why the activity test breach rate reduction period applies to the person.
General rule
(2) Subject to subsection (3), the activity test breach rate reduction period starts on the day on which the notice is given to the person.
Austudy payment ceasing to be payable
(3) If, on or before the day on which the person's activity test breach rate reduction period would (apart from this subsection) have started, an austudy payment ceases to be payable to the person, the period starts on the day on which the austudy payment ceases to be payable to the person.
582C Interaction with waiting periods
Application of section
(1) This section applies if, under this Part:
(a) an activity test breach rate reduction period applies to a person; and
(b) during the whole or a part of that period the whole or a part of a waiting period also applies to the person ( overlap period ).
Note: Other periods such as an administrative breach rate reduction period may also apply (see section 583D).
Overlap period
(2) The activity test breach rate reduction period and the waiting period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Despite any other provision of this Act, only the restriction on payment relating to the waiting period is to apply to the person during the overlap period.
582D Rate of austudy payment where activity test breach rate reduction period applies
Activity test breach reduced rate
(1) If an activity test breach rate reduction period applies to a person under this Part, the person's rate of austudy payment for the activity test breach rate reduction period is worked out as follows:
Method statement
Step 1. Work out the person's maximum basic rate of austudy payment using Module B of the Austudy Payment Rate Calculator in section 1067L: the result is the maximum payment rate .
Step 2. Work out the rate reduction amount as follows:
(a) if the activity test breach is the person's first breach in the 2 year period:
(b) if the activity test breach is the person's second breach in the 2 year period:
Step 3. Take the rate reduction amount away from the rate of austudy payment worked out in accordance with the Austudy Payment Rate Calculator in section 1067L: the result is the activity test breach reduced rate .
Note: An activity test breach reduced rate may be a nil rate.
Meaning of 2 year period
(2) In this section:
"2 year period" means the 2 years immediately before the day after the activity test breach.
Subdivision C -- Administrative breach reductions in the rate of austudy payment
583 Administrative breach rate reduction period
General rule
(1) Subject to subsection (2), an administrative breach rate reduction period applies to a person if:
(a) the person is subject to an administrative exclusion because of the application of section 577C and an austudy payment later becomes payable to the person; or
(b) the person refuses or fails, without reasonable excuse, to comply with a requirement made of the person under section 586A, 586B, 586C or 1304.
Exception
(2) An administrative breach rate reduction period does not apply to a person if:
(a) the person receives an austudy payment; and
(b) an administrative breach rate reduction period would, apart from this subsection, apply to the person; and
(c) the person's administrative breach reduced rate would be a nil rate; and
(d) payment of the austudy payment is cancelled or automatically terminated; and
(e) the person lodges a claim for an austudy payment more than 14 days after the date of effect of the cancellation or automatic termination referred to in paragraph (d).
583A Length of administrative breach rate reduction period
Basic rule
(1) Subject to subsection (2), the length of an administrative breach rate reduction period is 13 weeks.
Pre - existing administrative breach rate reduction period
(2) If, at the time of the commencement of an administrative breach rate reduction period under this Part, the person is already subject to an administrative breach rate reduction period ( pre - existing reduction period ), the pre - existing reduction period is taken to end immediately before the commencement of the administrative breach rate reduction period under this Part.
583B Start of administrative breach rate reduction period
Notice of start of period
(1) If an administrative breach rate reduction period applies to a person under this Part, the Secretary must give to the person a written notice telling the person of the start of the period.
(1A) A notice under subsection (1) must contain reasons why the administrative breach rate reduction period applies to the person.
General rule
(2) Subject to subsection (3), the administrative breach rate reduction period starts on the day on which the notice is given to the person.
Austudy payment ceasing to be payable
(3) If:
(a) on or before the day on which a person's administrative breach rate reduction period would (apart from this subsection) have started, an austudy payment ceases to be payable to the person; and
(b) it has not ceased to be payable because of the application of an administrative breach rate reduction period;
the administrative breach rate reduction period starts on the day on which the austudy payment ceases to be payable to the person.
583C Interaction with activity test non - payment periods
Application of section
(1) This section applies if, under this Part:
(a) an administrative breach rate reduction period applies to a person; and
(b) during the whole or a part of that period, the whole or a part of an activity test non - payment period also applies to the person ( overlap period ).
Note: Other periods such as a waiting period may also apply (see section 583E).
Overlap period
(2) The activity test non - payment period and the administrative breach rate reduction period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Subject to section 576E, the non - payment penalty relating to the activity test non - payment period is to apply to the person during the overlap period.
583D Interaction with activity test breach rate reduction periods
Application of section
(1) This section applies if, under this Part:
(a) an administrative breach rate reduction period applies to a person; and
(b) during the whole or a part of that period, the whole or a part of an activity test breach rate reduction period also applies to the person ( overlap period ).
Note: Other periods such as a waiting period may also apply (see section 583E).
Overlap period
(2) Subject to subsection (3), the administrative breach rate reduction period and the whole or a part of the activity test breach rate reduction period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Subject to sections 576D, 582C and 582D, the only rate reduction amount that is to apply to the person during the overlap period is the higher of the following:
(a) the rate reduction amount that relates to the activity test breach rate reduction period (see subsection 582D(1));
(b) the rate reduction amount that relates to the administrative breach rate reduction period (see section 583G).
583E Interaction with waiting periods
Application of section
(1) This section applies if, under this Part:
(a) an administrative breach rate reduction period applies to a person; and
(b) during the whole or a part of that period the whole or a part of a waiting period also applies to the person ( overlap period ).
Note: Other periods such as an activity test breach rate reduction period may also apply (see section 583D).
Overlap period
(2) The administrative breach rate reduction period and the whole or a part of the waiting period are to run concurrently during the overlap period.
Which restriction is to apply
(3) Despite any other provision of this Act, only the restriction on payment relating to the waiting period is to apply to the person during the overlap period.
583F Effect of sections 583C, 583D and 583E
For the avoidance of doubt, sections 583C, 583D and 583E do not prevent an austudy payment ceasing to be payable in circumstances that do not involve the application of an administrative breach rate reduction period.
583G Rate of austudy payment where administrative breach rate reduction applies
If an administrative breach rate reduction period applies to a person under this Part, the person's rate of austudy payment for the administrative breach rate reduction period is worked out as follows:
Method statement
Step 1. Work out the person's maximum basic rate of austudy payment using Module B of the Austudy Payment Rate Calculator in section 1067L: the result is the maximum payment rate .
Step 2. Multiply the person's maximum payment rate by 0.16: the result is the rate reduction amount .
Step 3. Take the rate reduction amount away from the rate of austudy payment worked out in accordance with the Austudy Payment Rate Calculator in section 1067L: the result is the administrative breach reduced rate .
Note: An administrative breach reduced rate may be a nil rate.
Division 6 -- Payment of austudy payment
An austudy payment becomes payable to a person on the first day on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes the allowance not payable to the person.
Note 1: For qualification see Subdivision A of Division 1.
Note 2: For circumstances in which an austudy payment is not payable see section 572.
Austudy payment paid by instalments
(1) Austudy payment is to be paid by instalments for periods determined by the Secretary.
Time of payment
(2) Instalments of austudy payment are to be paid at the times determined by the Secretary.
584B Instalments for period less than a fortnight
Period less than a fortnight
(1) If:
(a) an instalment of austudy payment is for a period; and
(b) the period is less than a fortnight;
the instalment for the period is the amount worked out by using the formula:
Period consisting of whole fortnights and period less than fortnight
(2) If:
(a) an instalment of austudy payment is for a period; and
(b) the period consists of:
(i) a number of whole fortnights; and
(ii) a period that is less than a fortnight;
the instalment, in so far as it relates to the period that is less than a fortnight, is the amount worked out by using the formula:
Fraction of a cent
(1) If the amount of an instalment includes a fraction of a cent, the amount is to be rounded to the nearest whole cent (0.5 cent being rounded upwards).
Amount increased to fortnightly PA rate
(2) If:
(a) an amount of pharmaceutical allowance is added to a person's maximum basic rate in working out the amount of an instalment of austudy payment; and
(b) apart from this subsection, the amount of the instalment would be less than the person's fortnightly PA rate;
the amount of the instalment is to be increased to the person's fortnightly PA rate.
Fortnightly PA rate
(3) For the purposes of subsection (2), the person's fortnightly PA rate is the rate worked out by using the formula:
where:
"N" means whichever of the following applies:
(a) if the instalment is for a number of whole fortnights--the number of fortnights;
(b) if the instalment is for a period of less than a fortnight--the number worked out by using the formula:
(c) if the instalment is for a period that consists of a number of whole fortnights and a period of less than a fortnight--the number worked out by using the formula:
"pharmaceutical allowance rate" means the fortnightly amount of pharmaceutical allowance added to the person's maximum basic rate in working out the amount of the instalment.
Amount increased to $1.00
(4) If, apart from this section, the amount of an instalment would be less than $1.00, the amount is to be increased to $1.00.
584D Austudy payment or advance to be paid to person or nominee
(1) Subject to subsection (3), instalments of a person's austudy payment are to be paid to that person.
(2) The Secretary may direct that the whole or part of the instalments of a person's austudy payment is to be paid to someone else on behalf of the person.
(3) If the Secretary makes a direction under subsection (2), the instalments are to be paid in accordance with the direction.
584E Payment into bank account etc.
Manner of payment
(1) An amount that is to be paid to a person under section 584D is to be paid in the manner set out in this section.
Payment into account
(2) Subject to this section, the amount is to be paid, at the intervals that the Secretary directs, to the credit of a bank account, credit union account or building society account nominated and maintained by the person.
Joint or common account
(3) The account may be an account that is maintained by the person either alone or jointly or in common with another person.
Secretary may direct payment in different way
(4) The Secretary may direct that the whole or a part of the amount be paid to the person in a different way from that provided for by subsection (2).
Payment in accordance with direction
(5) If the Secretary gives a direction under subsection (4), the amount is to be paid in accordance with the direction.
584F If austudy payment payday would fall on public holiday etc.
If the Secretary is satisfied that an amount of austudy payment that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day.
584G Payment of austudy payment after death
Payment to person determined by Secretary
(1) If:
(a) an austudy payment is payable to a person; and
(b) the person dies; and
(c) at the date of the person's death the person had not received an amount of austudy payment payable to him or her; and
(d) another person applies to receive the amount; and
(e) the application is made:
(i) within 6 months after the death; or
(ii) within a further period allowed by the Secretary in special circumstances;
the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it.
No further liability for Commonwealth
(2) If the Secretary pays an amount of austudy payment under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of austudy payment.
Division 7 -- Protection of austudy payment
585 Austudy payment to be absolutely inalienable
Austudy payment absolutely inalienable
(1) Subject to subsections (2) and (3) and section 1359, an austudy payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at recipient's request
(2) The Secretary may make deductions from the instalments of austudy payment payable to a person if the person asks the Secretary:
(a) to make the deductions; and
(b) to pay the amount to be deducted to the Commissioner of Taxation.
Note: The Secretary must make deductions from a person's austudy payment if requested by the Commissioner of Taxation (see section 1359).
Deductions from instalments with recipient's consent
(3) The Secretary may make deductions from the instalments of austudy payment payable to a person if the person consents under section 1234A to the Secretary making the deduction.
Note: Section 1234A enables the Secretary to recover a debt from a person other than the debtor if the person is receiving an austudy payment.
585A Effect of garnishee or attachment order
Court order not to apply to saved amount
(1) If:
(a) a person has an account with a financial institution; and
(b) instalments of austudy payment payable to the person are being paid (whether on the person's own behalf or not) to the credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in respect of the account;
the court order does not apply to the saved amount (if any) in the account.
Method of working out saved amount
(2) The saved amount is worked out as follows:
Method statement
Step 1. Work out the total amount of austudy payment payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force.
Step 2. Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount .
Single, joint or common account
(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
Division 8 -- Obligations of recipients
586 Secretary may request recipient to give statement of recipient's tax file number
Request for tax file number
(1) The Secretary may request but not compel a person to whom an austudy payment is being paid:
(a) if the person has a tax file number--to give the Secretary a written statement of the person's tax file number; or
(b) if the person does not have a tax file number:
(i) to apply to the Commissioner of Taxation for a tax file number; and
(ii) to give the Secretary a written statement of the person's tax file number after the Commissioner of Taxation has issued it.
Failure to satisfy request
(2) An austudy payment is not payable to a person if, at the end of 28 days after a request is made:
(a) the person has failed to satisfy the request; and
(b) the Secretary has not exempted the person from having to satisfy the request.
586A Secretary may request recipient to give statement of partner's tax file number
Request for partner's tax file number
(1) If:
(a) an austudy payment recipient is a member of a couple; and
(b) the recipient's partner is in Australia;
the Secretary may request but not compel the recipient to give the Secretary a written statement of the tax file number of the recipient's partner.
Failure to satisfy request
(2) An austudy payment is not payable to a recipient if, at the end of 28 days after a request is made:
(a) the recipient has failed to satisfy the request; and
(b) the Secretary has not exempted the recipient from having to satisfy the request.
Note 1: In some cases the request can be satisfied by giving the Secretary a declaration by the partner about the partner's tax file number and an authority by the partner to the Commissioner of Taxation to give the Secretary certain information relevant to the partner's tax file number (see subsections 577B(2) and (3)).
Note 2: The Secretary may waive the requirement in some cases (see subsection 577B(4)).
Secretary may give notice requiring information
(1) The Secretary may give a person to whom an austudy payment is being paid a notice that requires the person to tell the Department if:
(a) a stated event or change of circumstances occurs; or
(b) the person becomes aware that a stated event or change of circumstances is likely to occur.
Event or change relevant to payment
(2) An event or change of circumstances is not to be stated in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the austudy payment.
Formalities related to notice
(3) Subject to subsection (4), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must state how the person is to give the information to the Department; and
(d) must state the period within which the person is to give the information to the Department; and
(e) must state that the notice is a recipient notification notice given under this Act; and
(f) must state the effect of failure by the person to comply with the requirement set out in the notice.
Validity of notice
(4) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (3)(c) or (e).
Period within which information to be given
(5) Subject to subsections (6) and (7), the period stated under paragraph (3)(d) must end at least 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of circumstances is likely to occur.
Person leaving Australia
(6) If a notice requires the person to tell the Department of any proposal by the person to leave Australia, subsection (5) does not apply to that requirement.
Information as to compensation payment
(7) If the notice requires information about receipt of a compensation payment, the period stated under paragraph (3)(d) in relation to the information must end at least 14 days after the day on which the person becomes aware that he or she has received or is to receive a compensation payment.
Refusal or failure to comply with notice
(8) A person must not, without reasonable excuse, intentionally or recklessly refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: Imprisonment for 6 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.
Application overseas
(9) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all people irrespective of their nationality or citizenship.
Secretary may give notice requiring statement on matter
(1) The Secretary may give a person to whom an austudy payment is being paid a notice that requires the person to give the Department a statement about a matter that might affect the payment of the allowance to the person.
Formalities related to notice
(2) Subject to subsection (3), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must state how the statement is to be given to the Department; and
(d) must state the period within which the person is to give the statement to the Department; and
(e) must state that the notice is a recipient statement notice given under this Act; and
(f) must state the effect of failure by the person to comply with the requirement set out in the notice.
Validity of notice
(3) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (2)(c) or (e).
Period within which statement to be provided
(4) The period stated under paragraph (2)(d) must end at least 14 days after the day on which the notice is given.
Statement must be in approved form
(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
Refusal or failure to comply with notice
(6) A person must not, without reasonable excuse, intentionally or recklessly refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice.
Penalty: Imprisonment for 6 months.
Note: Subsection 4B(2) of the Crimes Act 1914 allows a court that convicts an individual of an offence to impose a fine instead of, or in addition to, a term of imprisonment. The maximum fine that a court can impose on the individual is worked out by multiplying the maximum term of imprisonment (in months) by 5, and then multiplying the resulting number by the amount of a penalty unit. The amount of a penalty unit is stated in section 4AA of that Act.
Application overseas
(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and
(b) all people irrespective of their nationality or citizenship.
Division 9 -- Continuation, variation and termination
587 Continuing effect of determination
Entitlement determination
(1) A determination that:
(a) a person's claim for an austudy payment is to be granted; or
(b) an austudy payment is payable to a person;
continues in effect until:
(c) the austudy payment ceases to be payable under section 588, 588A, 588B, 588C or 588D; or
(d) a further determination in relation to the austudy payment under section 590B or 590C has taken effect.
Note 1: For paragraph (a) see section 580A.
Note 2: For paragraph (b) see section 590E--this paragraph is relevant if the determination in question reverses an earlier cancellation or suspension.
Note 3: For paragraph (d) see also section 590D.
Rate determination
(2) A determination of the rate of an austudy payment continues in effect until:
(a) the austudy payment becomes payable at a lower rate under section 589, 589A or 589B; or
(b) a further determination in relation to the austudy payment under section 590 or 590A has taken effect.
Subdivision B -- Automatic termination
588 Automatic termination--transfer to social security pension or benefit etc.
If a person is receiving an austudy payment and:
(a) one of the following becomes payable to the person:
(i) a social security pension;
(ii) another social security benefit;
(iii) a service pension; or
(b) a payment under ABSTUDY (other than the ABSTUDY Tertiary Scheme to the extent that it applies to part - time students) becomes payable in respect of the person;
the austudy payment ceases to be payable to the person immediately before the day on which the pension, benefit or other payment becomes payable to, or in respect of, the person.
588A Automatic termination--compliance with section 568B notification obligations
If:
(a) a person who is receiving an austudy payment is given a notice under section 586B; and
(b) the notice requires the person to tell the Department of the occurrence of an event or change in circumstances within a stated period ( notification period ); and
(c) the event or change in circumstances occurs; and
(d) the person tells the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for the austudy payment; or
(ii) the austudy payment would, apart from this section, cease to be payable to the person; and
(f) the austudy payment is not cancelled before the end of the notification period;
the austudy payment continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
588B Automatic termination--non - compliance with section 586B notification obligations
If:
(a) a person who is receiving an austudy payment is given a notice under section 586B; and
(b) the notice requires the person to tell the Department of the occurrence of an event or change in circumstances within a stated period ( notification period ); and
(c) the event or change in circumstances occurs; and
(d) the person does not tell the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for the austudy payment; or
(ii) the austudy payment ceases to be payable to the person;
the austudy payment ceases to be payable to the person immediately before the day on which the event or change in circumstances occurs.
588C Automatic termination--failure to provide section 586C statement
Austudy payment ceases to be payable
(1) If:
(a) a person who is receiving an austudy payment is given a notice under section 586C requiring the person to give the Department a statement; and
(b) the notice relates to the payment of the austudy payment in respect of a period stated in the notice; and
(c) the person does not comply with the notice;
then, subject to subsection (2), the austudy payment ceases to be payable to the person as from the first day in that period.
Secretary may determine that austudy payment continues
(2) If the Secretary is satisfied that, in the special circumstances of the case, it is appropriate to do so, the Secretary may determine in writing that subsection (1) does not apply to the person from a day stated in the determination.
Stated day
(3) The day stated under subsection (2) may be before or after the making of the determination.
588D Changes to payments by computer following automatic termination
If:
(a) a person is receiving an austudy payment on the basis of data in a computer; and
(b) the austudy payment is automatically terminated by the operation of a provision of this Act; and
(c) the automatic termination is given effect to by the operation of a computer program approved by the Secretary stopping payment of the austudy payment;
there is taken to be a decision by the Secretary that the automatic termination provision applies to the person's austudy payment.
Note: The decision that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247).
Subdivision C -- Automatic rate reduction
589 Automatic rate reduction--partner starting to receive pension or benefit
If:
(a) a person is receiving an austudy payment; and
(b) the person's partner starts to receive:
(i) a social security pension or social security benefit; or
(ii) a service pension; and
(c) the person's austudy payment rate is reduced because of the partner's receipt of that pension or benefit;
the austudy payment becomes payable to the person at the reduced rate on the day on which the partner starts to receive that pension or benefit.
589A Automatic rate reduction--compliance with section 586B obligations
If:
(a) a person who is receiving an austudy payment is given a notice under section 586B; and
(b) the notice requires the person to tell the Department of the occurrence of an event or change in circumstances within a stated period ( notification period ); and
(c) the event or change in circumstances occurs; and
(d) the person tells the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person's rate of austudy payment is to be reduced; and
(f) the person's rate of austudy payment is not reduced before the end of the notification period;
the austudy payment becomes payable to the person at the reduced rate immediately after the end of the notification period.
589B Automatic rate reduction--non - compliance with section 586B notification obligations
If:
(a) a person who is receiving an austudy payment is given a notice under section 586B; and
(b) the notice requires the person to tell the Department of the occurrence of an event or change in circumstances within a stated period ( notification period ); and
(c) the event or change in circumstances occurs; and
(d) the person does not tell the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the person's rate of austudy payment is to be reduced;
the austudy payment becomes payable to the person at the reduced rate immediately before the day on which the event or change in circumstances occurs.
589C Changes to payments by computer following automatic reduction
If:
(a) a person is receiving an austudy payment on the basis of data in a computer; and
(b) the austudy payment rate is automatically reduced by the operation of a provision of this Act; and
(c) the automatic reduction is given effect to by the operation of a computer program approved by the Secretary reducing the rate of payment of the austudy payment;
there is taken to be a decision by the Secretary that the automatic rate reduction provision applies to the person's austudy payment.
Note: The decision that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247).
Subdivision D -- Determinations
590 Rate increase determination
If the Secretary is satisfied that the rate at which an austudy payment is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate stated in the determination.
Note: For the date of effect of a determination under this section see section 591.
590A Rate reduction determination
If the Secretary is satisfied that the rate at which an austudy payment is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate stated in the determination.
Note 1: A determination under this section is not necessary if an automatic rate reduction is produced by section 589B (see subsection 587(2)).
Note 2: For the date of effect of a determination under this section see section 591A.
590B Cancellation or suspension determination
If the Secretary is satisfied that an austudy payment is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the austudy payment is to be cancelled or suspended.
Note 1: A determination under this section is not necessary if an automatic termination is produced by section 588, 588A, 588B, 588C or 588D (see subsection 587(1)).
Note 2: For the date of effect of a determination under this section see section 591A.
590C Cancellation or suspension for failure to comply with section 586C, 1304 or 1305 notice
If:
(a) a person who is receiving an austudy payment is given a notice under section 586C, 1304 or 1305; and
(b) the person does not comply with the requirements set out in the notice;
the Secretary may determine that the austudy payment is to be cancelled or suspended.
Note 1: This section will not apply if section 588B or 590B applies.
Note 2: For the date of effect of a determination under this section see section 591A.
590D Changes to payments by computer
If:
(a) payment of an austudy payment to a person is based upon data in a computer; and
(b) the austudy payment rate is increased or reduced, or the austudy payment is cancelled or suspended, because of the operation of a computer program approved by the Secretary; and
(c) the program causes the change for a reason for which the Secretary could determine the change;
the change is taken to have been made because of a determination by the Secretary for that reason.
Note: The determination that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247).
590E Resumption of payment after cancellation or suspension
Secretary to determine austudy payment payable
(1) If the Secretary:
(a) cancels or suspends a person's austudy payment under section 590B or 590C; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that because of the decision to cancel or suspend:
(i) the person did not receive an austudy payment that was payable to the person; or
(ii) the person is not receiving an austudy payment that is payable to the person;
the Secretary is to determine that an austudy payment was or is payable to the person.
Reconsideration on application or Secretary's initiative
(2) The reconsideration referred to in paragraph (1)(b) may be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary's own initiative.
Note: For the date of effect of a determination under this section see section 591.
Subdivision E -- Date of effect of determination
591 Date of effect of favourable determination
Method of working out date
(1) The day on which a determination under section 590 or 590E ( favourable determination ) takes effect is worked out in accordance with this section.
Notified decision--review sought within 3 months
(2) If:
(a) a decision ( previous decision ) is made in relation to an austudy payment; and
(b) a notice is given to the person to whom the austudy payment is payable telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240, within 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified decision--review sought after 3 months
(3) If:
(a) a decision ( previous decision ) is made in relation to an austudy payment; and
(b) a notice is given to the person to whom the austudy payment is payable telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 more than 3 months after the notice is given, for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the person sought the review.
Decision not notified
(4) If:
(a) a decision ( previous decision ) is made in relation to an austudy payment; and
(b) no notice is given to the person to whom the austudy payment is payable telling the person of the making of the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of the previous decision; and
(d) a favourable determination is made as a result of the application for review;
the determination takes effect on the day on which the previous decision took effect.
Notified change of circumstances
(5) If the favourable determination is made following a person having told the Department of a change in circumstances, the determination takes effect on the day on which the Department was told or the day on which the change occurred, whichever is the later.
Other determinations
(6) In any other case, the favourable determination takes effect on the day on which the determination was made or on any later day or earlier day (other than a day more than 3 months before the determination was made) that is stated in the determination.
591A Date of effect of adverse determination
General
(1) The day on which a determination under section 590A, 590B or 590C ( adverse determination ) takes effect is worked out in accordance with this section.
Note: If the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review (see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal)).
Date determination takes effect
(2) Subject to subsection (9), the adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is stated in the determination--that day.
Later date than determination
(3) Subject to subsections (4), (5), (6), (7) and (8), the day stated under paragraph (2)(b) must be later than the day on which the determination is made.
Contravention of Act by person whose austudy payment is affected
(4) If:
(a) the person whose austudy payment is affected by the adverse determination has contravened a provision of this Act (other than section 586C, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination;
the day stated under paragraph (2)(b) may be earlier than the day on which the determination is made.
False statement or misrepresentation--suspension or cancellation
(5) If:
(a) a person has made a false statement or a misrepresentation; and
(b) because of the false statement or misrepresentation, austudy payment has been paid to a person when it should have been cancelled or suspended;
the day stated under paragraph (2)(b) may be earlier than the day on which the determination is made.
False statement or misrepresentation--rate reduction
(6) If:
(a) a person has made a false statement or a misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which austudy payment was paid to a person was more than it should have been;
the day stated under paragraph (2)(b) may be earlier than the day on which the determination is made.
Payment of arrears of periodic compensation--suspension or cancellation
(7) If:
(a) an adverse determination is made in relation to a person because of point 1067L - D24 (payment of arrears of periodic compensation payments); and
(b) an austudy payment has been paid to the person or the person's partner when, because of the payment of arrears of periodic compensation, austudy payment should have been cancelled or suspended;
the day stated under paragraph (2)(b) may be earlier than the day on which the determination is made.
Payment of arrears of periodic compensation payments--rate reduction
(8) If:
(a) an adverse determination is made in relation to a person because of point 1067L - D24 (payment of arrears of periodic compensation payments); and
(b) the rate at which austudy payment was paid to the person or the person's partner was, because of the payment of arrears of periodic compensation, more than the rate at which austudy payment should have been paid;
the day stated under paragraph (2)(b) may be earlier than the day on which the determination is made.
Section 586C statements
(9) If the adverse determination is made following a person having given the Department a statement about a matter in accordance with section 586C, the determination takes effect on the day on which the matter arose.
Division 10 -- Bereavement payments on death of partner
592 Qualification for payments under this Division
Qualification for payment
(1) If:
(a) a person is receiving an austudy payment; and
(b) the person is a long - term social security recipient; and
(c) the person is a member of a couple; and
(d) the person's partner dies; and
(e) immediately before the partner died, the partner:
(i) was receiving a social security pension; or
(ii) was receiving a service pension; or
(iii) was a long - term social security recipient; and
(f) on the person's payday immediately before the first available bereavement adjustment payday, the amount that would be payable to the person if the person were not qualified for payments under this Division is less than the sum of:
(i) the amount that would otherwise be payable to the person under section 592C (person's continued rate) on that payday; and
(ii) the amount (if any) that would otherwise be payable to the person under section 592A (continued payment of partner's pension or benefit) on the partner's payday immediately before the first available bereavement adjustment payday;
the person is qualified for payments under this Division to cover the bereavement period.
Note 1: Section 592A provides for the payment to the person, up to the first available bereavement adjustment payday, of amounts equal to the instalments that would have been paid to the person's partner during that period if the partner had not died.
Note 2: Section 592B provides for a lump sum that represents the instalments that would have been paid to the person's partner, between the first available bereavement adjustment payday and the end of the bereavement period, if the partner had not died.
Note 3: For first available bereavement adjustment payday and bereavement period see section 21.
Choice not to receive payments
(2) A person who is qualified for payments under this Division may choose not to receive payments under this Division.
Form of choice
(3) A choice under subsection (2):
(a) must be made by written notice to the Secretary; and
(b) may be made after the person has been paid an amount or amounts under this Division; and
(c) cannot be withdrawn after the Department has taken all the action required to give effect to that choice.
Rate during bereavement period
(4) If a person is qualified for payments under this Division in relation to the partner's death, the rate at which austudy payment is payable to the person during the bereavement period is, unless the person has made a choice under subsection (2), governed by section 592C.
592A Continued payment of partner's pension or benefit
If a person is qualified for payments under this Division in relation to the death of the person's partner, there is payable to the person, on each of the partner's paydays in the bereavement rate continuation period, an amount equal to the amount that would have been payable to the partner on that payday if the partner had not died.
Note: For bereavement rate continuation period see section 21.
592B Lump sum payable in some circumstances
If:
(a) a person is qualified for payments under this Division in relation to the death of the person's partner; and
(b) the first available bereavement adjustment payday occurs before the end of the bereavement period;
there is payable to the person as a lump sum an amount worked out using the lump sum calculator at the end of this section.
Lump sum calculator
Method statement
Step 1. Add up:
(a) the amount that, if the person's partner had not died, would have been payable to the person on the person's payday immediately before the first available bereavement adjustment payday; and
(b) the amount (if any) that, if the partner had not died, would have been payable to the partner on the partner's payday immediately before the first available bereavement adjustment payday;
the result is the combined rate .
Step 2. Work out the amount that, apart from section 592C, would have been payable to the person on the person's payday immediately before the first available bereavement adjustment payday: the result is the person's individual rate .
Step 3. Take the person's individual rate away from the combined rate: the result is the partner's instalment component .
Step 4. Work out the number of the partner's paydays in the bereavement lump sum period .
Step 5. Multiply the partner's instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable to the person under this section.
592C Adjustment of person's austudy payment rate
If:
(a) a person is qualified for payments under this Division; and
(b) the person does not elect under subsection 592(2) not to receive payments under this Division;
the rate of the person's austudy payment during the bereavement period is worked out as follows:
(c) during the bereavement rate continuation period, the rate of austudy payment payable to the person is the rate at which the austudy payment would have been payable to the person if the person's partner had not died;
(d) during the bereavement lump sum period (if any), the rate at which austudy payment is payable to the person is the rate at which austudy payment would be payable to the person apart from this Division.
592D Effect of death of person entitled to payments under this Division
If:
(a) a person is qualified for payments under this Division in relation to the death of the person's partner; and
(b) the person dies within the bereavement period; and
(c) the Secretary does not become aware of the death of the person's partner before the person dies;
there is payable, to any person that the Secretary thinks appropriate, as a lump sum, an amount worked out using the lump sum calculator at the end of this section.
Lump sum calculator
Method statement
Step 1. Add up:
(a) the amount that, if neither the person nor the person's partner had died, would have been payable to the person on the person's payday immediately after the day on which the person dies; and
(b) the amount (if any) that, if neither the person nor the person's partner had died, would have been payable to the person's partner on the partner's payday immediately after the day on which the person died;
the result is the combined rate .
Step 2. Work out the amount that, apart from section 592C, would have been payable to the person on the person's payday immediately after the day on which the person died if the person had not died: the result is the person's individual rate .
Step 3. Take the person's individual rate away from the combined rate: the result is the partner's instalment component .
Step 4. Work out the number of paydays of the partner in the period that begins on the day after the person dies and ends on the day on which the bereavement period ends.
Step 5. Multiply the partner's instalment component by the number obtained in Step 4: the result is the amount of the lump sum payable under this section.
592E Matters affecting payments under this Division
Recovery/reduction of amount payable
(1) If:
(a) a person is qualified for payments under this Division in relation to the death of the person's partner; and
(b) after the person's partner died, an amount to which the partner would have been entitled if the partner had not died has been paid under this Act or under Part III of the Veterans' Entitlements Act; and
(c) the Secretary is not satisfied that the person has not had the benefit of that amount;
the following provisions have effect:
(d) the amount referred to in paragraph (b) is not recoverable from the person or from the personal representative of the person's partner, except to the extent (if any) that the amount is more than the amount payable to the person under this Division;
(e) the amount payable to the person under this Division is to be reduced by the amount referred to in paragraph (b).
Financial institution not liable
(2) If:
(a) a person is qualified for payments under this Division in relation to the death of the person's partner; and
(b) the amount to which the person's partner would have been entitled if the person's partner had not died has been paid under this Act or under Part III of the Veterans' Entitlements Act, within the bereavement period, into an account with a bank, credit union or building society (financial institution); and
(c) the financial institution pays to the person, out of the account, an amount not more than the total of the amounts paid as mentioned in paragraph (b);
the financial institution is, despite anything in any other law, not liable to any action, claim or demand by the Commonwealth, the personal representative of the person's partner or anyone else in respect of the payment of that money to the person.
7 After Part 3.5
Insert:
Part 3.5A -- Austudy Payment Rate Calculator
In this Part:
"living at home" has the meaning given by section 1067J.
"long term income support student" has the meaning given by section 1067K.
A person lives at home if the person lives at the home of either or both of his or her parents.
Note: For parent see section 5 (paragraph (a) of the definition of parent ).
1067K Long term income support student
(1) A person is a long term income support student if the person:
(a) is not a member of a couple; and
(b) does not have a dependent child; and
(c) is undertaking study (whether as a full - time student or as a concessional study - load student) in respect of a course of education that the person has commenced after turning 21; and
(d) has, for at least 26 out of the preceding 39 weeks, been receiving one or more of the following:
(i) newstart allowance;
(ii) sickness allowance;
(iii) special benefit;
(iv) disability support pension;
(v) wife pension;
(vi) carer payment;
(vii) bereavement allowance;
(viii) disability wage supplement;
(ix) pension PP (single);
(x) sole parent pension;
(xi) benefit parenting allowance;
(xii) benefit PP (partnered).
Note 1: For dependent child see subsections 5(2) to (9).
Note 2: For full - time student and concessional study - load student see sections 569C and 569D.
(2) A person is also a long term income support student if the person:
(a) is not a member of a couple; and
(b) does not have a dependent child; and
(c) does not have English as a first language; and
(d) is undertaking a course in English, being a course that the Secretary has approved.
Note: For dependent child see subsections 5(2) to (9).
Austudy Payment Rate Calculator
(1) The rate of austudy payment of a person referred to in subsection 581(1) is to be calculated in accordance with the Rate Calculator in this section.
Limit on rate of payment
(2) If:
(a) a person is living with another person as the spouse of the other person on a genuine domestic basis although not legally married to the other person; and
(b) the other person is of the opposite sex and under the age of consent that applies in the State or Territory in which they are living;
the rate of the person's austudy payment is not to be more than the rate at which the austudy payment would be payable to the person if the other person were the person's partner.
Austudy Payment Rate Calculator
Module A -- Overall rate calculation process
Method of calculating rate
1067L - A1 The rate of payment is a fortnightly rate.
Method statement
Step 1. Work out the person's maximum basic rate using Module B below.
Step 2. Work out the amount a fortnight (if any) of pharmaceutical allowance using Module C below.
Step 3. Add up the amounts obtained in Steps 1 to 2: the result is the maximum payment rate .
Step 4. Apply the income test using Module D below to work out the person's income reduction.
Step 5. Take away the person's income reduction from the maximum payment rate: the result is the provisional payment rate .
Note: If a person's rate is reduced under this step, the order in which the reduction is to be made is laid down by section 1207 (maximum basic rate first, then pharmaceutical allowance).
Step 6. The rate of payment is the difference between:
(a) the provisional payment rate; and
(b) any advance payment deduction (see Part 3.16A);
plus any applicable amount of remote area allowance (see Module F below).
Module B -- Maximum basic rate
Maximum basic rate
1067L - B1 A person's maximum basic rate is to be worked out as follows:
(a) if the person is not a long term income support student (see section 1067K)--use Table BA;
(b) if the person is a long term income support student--use point 1067L - B3.
Person who is not a long term income support student
1067L - B2 If the person is not a long term income support student (see section 1067K), work out whether the person:
(a) is a member of a couple (see section 4); and
(b) has a dependent child (see subsections 5(2) to (9)).
The person's maximum basic rate is the amount in column 3 of the table that corresponds to the person's situation as described in column 2 of the table.
Table BA--Maximum basic rates (persons who are not long term income support students) | ||
Column 1 Item | Column 2 Person's situation | Column 3 Rate |
1 | Does not have a dependent child | $265.50 |
2 | Has a dependent child and is not a member of a couple | $347.80 |
3 | Has a dependent child and is a member of a couple | $291.60 |
Note: The rates in column 3 are indexed annually in line with CPI increases (see sections 1191 to 1194).
Long term income support student
1067L - B3 If the person is a long term income support student (see section 1067K), the person's maximum basic rate is $322.40.
Note: The rate provided for in this point is indexed annually in line with CPI increases (see sections 1191 to 1194).
Module C -- Pharmaceutical allowance
Qualification for pharmaceutical allowance
1067L - C1 Subject to point 1067L - C2, an amount by way of pharmaceutical allowance is to be added to a person's maximum basic rate if:
(a) the person is in Australia; and
(b) the person has turned 60; and
(c) the person has been receiving income support payments in respect of a continuous period of at least 9 months (whether or not the kind of payment received has changed over the period and whether the period or any part of it occurred before or after the commencement of this paragraph).
Note 1: For income support payment see subsection 23(1).
Note 2: For the determination of the continuous period in respect of which a person received income support payments see section 38B.
No pharmaceutical allowance if partner receiving pharmaceutical allowance under the Veterans' Entitlements Act and not a service pensioner
1067L - C2 Pharmaceutical allowance is not to be added to a person's maximum basic rate if:
(a) the person is a member of a couple; and
(b) the person's partner is receiving pharmaceutical allowance under the Veterans' Entitlements Act; and
(c) the person's partner is not receiving a service pension.
Note: If paragraphs (a), (b) and (c) apply to the person's partner, the partner is receiving pharmaceutical allowance under the Veterans' Entitlements Act at the higher rate (rather than the person and the person's partner each receiving pharmaceutical allowance at the lower rate).
Amount of pharmaceutical allowance
1067L - C3 The amount of pharmaceutical allowance is the amount per fortnight worked out using the following table:
Table C--Pharmaceutical allowance amounts | ||
Column 1 Item | Column 2 Person's family situation | Column 3 Amount per fortnight |
1 | Not a member of a couple | $5.40 |
2 | Partnered | $2.70 |
3 | Member of an illness separated couple | $5.40 |
4 | Member of a respite care couple | $5.40 |
5 | Partnered (partner getting service pension) | $2.70 |
6 | Partnered (partner in gaol) | $5.40 |
Note 1: For member of a couple , partnered , illness separated couple , respite care couple and partnered (partner in gaol) see section 4.
Note 2: The amounts in column 3 are indexed or adjusted annually in line with CPI increases on 1 January (see sections 1191 to 1194 and 1206A).
Effect of ordinary income on maximum payment rate
1067L - D1 This is how to work out the effect of:
(a) a person's ordinary income; and
(b) the ordinary income of a partner of the person;
on the person's maximum payment rate:
Method statement
Step 1. Work out the amount of the person's ordinary income on a fortnightly basis (where appropriate, taking into account the matters provided for in points 1067L - D2 to 1067L - D24).
Note: The person's ordinary income may be reduced under Module E below (student income bank).
Step 2. If the person is a member of a couple, work out the partner income free area using point 1067L - D25.
Note: The partner income free area is the maximum amount of ordinary income the person's partner can have without affecting the person's benefit.
Step 3. Use point 1067L - D26 to work out the person's partner income excess. (If there is no partner income excess under that point, the person's partner income excess is taken to be nil.)
Step 4. Use the person's partner income excess to work out the person's partner income reduction using point 1067L - D27.
Step 5. Use point 1067L - D29 to work out the person's ordinary income excess. (If there is no ordinary income excess under that point, the person's ordinary income excess is taken to be nil.)
Step 6. Use the person's ordinary income excess to work out the person's ordinary income reduction using points 1067L - D30, 1067L - D31 and 1067L - D32.
Step 7. Add the person's partner income reduction and ordinary income reduction: the result is the person's income reduction referred to in Step 4 of the Method statement in point 1067L - A1.
Note 1: For ordinary income see subsection 8(1).
Note 2: The application of the income test is affected by provisions concerning the following:
(a) the general concept of ordinary income (sections 1072 and 1073);
(b) business income (sections 1074 and 1075);
(c) deemed income from financial assets (sections 1076 to 1084A);
(d) income from income streams (sections 1096 to 1099D);
(e) disposal of income (sections 1106 to 1112).
Ordinary income of members of certain couples
1067L - D2 If a person is a member of a couple and the person's partner is receiving a social security pension, a service pension or a rehabilitation allowance, the person's ordinary income is taken to be one half of the sum of:
(a) the amount that would be the person's ordinary income if he or she were not a member of a couple; and
(b) the amount that would be the ordinary income of the person's partner if the partner were not a member of a couple.
Termination payments
1067L - D3 Subject to points 1067L - D4 to 1067L - D16 (inclusive), if:
(a) a person's employment has been terminated; and
(b) as a result the person is entitled to a lump sum payment from the person's former employer;
the person is taken to have received the lump sum payment on the day on which the person's employment was terminated.
Rolling over lump sum leave payments
1067L - D4 If:
(a) a person's employment has been terminated; and
(b) as a result the person is entitled to a lump sum leave payment from the person's former employer; and
(c) the person rolls over the lump sum leave payment into an approved deposit fund, a superannuation fund or a deferred annuity;
the lump sum leave payment is to be disregarded in working out the ordinary income of the person for the purposes of this Module.
Certain leave payments taken to be ordinary income--employment continuing
1067L - D5 If:
(a) a person is employed; and
(b) the person is on leave for a period; and
(c) the person is or was entitled to receive a leave payment (whether as a lump sum payment, as a payment that is one of a series of regular payments or otherwise) in respect of a part or all of a leave period;
the person is taken to have received ordinary income for a period (the income maintenance period ) equal to the leave period to which the leave payment entitlement relates.
Certain leave payments taken to be ordinary income--employment terminated
1067L - D6 If:
(a) a person's employment has been terminated; and
(b) the person receives a leave payment (whether as a lump sum payment, as a payment that is one of a series of regular payments or otherwise);
the person is taken to have received ordinary income for a period (the income maintenance period ) equal to the leave period to which the payment relates.
More than one leave payment on a day
1067L - D7 If:
(a) the person is covered by point 1067L - D6; and
(b) the person receives more than one leave payment on a day;
the income maintenance period is worked out by adding the leave periods to which the payments relate.
Start of income maintenance period--employment continuing
1067L - D8 If the person is covered by point 1067L - D5, the income maintenance period starts on the first day of the leave period to which the leave payment entitlement relates.
Start of income maintenance period--employment terminated
1067L - D9 If the person is covered by point 1067L - D6, the income maintenance period starts, subject to point 1067L - D10, on the day on which the person is paid the leave payment.
Commencement of income maintenance period where there is a second leave payment--employment terminated
1067L - D10 If:
(a) a person who is covered by point 1067L - D6 is subject to an income maintenance period (the first period ); and
(b) the person is paid another leave payment during that period (the second leave payment );
the income maintenance period for the second leave payment starts on the day after the end of the first period.
Leave payments in respect of periods longer than a fortnight
1067L - D11 If:
(a) a person receives a leave payment; and
(b) the payment is in respect of a period of leave longer than a fortnight;
the person is taken to receive in a payment fortnight or part of a payment fortnight an amount calculated by:
(c) dividing the amount received by the number of days in the period of leave to which the payment relates ( daily rate ); and
(d) multiplying the daily rate by the number of days in the payment fortnight that are also in the period of leave.
Secretary may determine in certain circumstances that the whole or a part of an income maintenance period does not apply
1067L - D12 The Secretary may determine that the whole or any part of an income maintenance period that would, apart from this point, apply to the person, does not apply to the person if the Secretary is satisfied that:
(a) the application of the income maintenance period to the person would cause the person severe financial hardship; and
(b) the circumstances that would cause the severe financial hardship were not reasonably foreseeable by the person.
When a person receives a leave payment
1067L - D13 For the purposes of points 1067L - D4 to 1067L - D12 (inclusive), a person ( first person ) is taken to receive a leave payment if:
(a) the payment is made to another person:
(i) at the direction of the first person or a court; or
(ii) on behalf of the first person; or
(iii) for the benefit of the first person; or
(b) the first person waives or assigns his or her right to receive the payment.
Single payment in respect of different kinds of leave--employment terminated
1067L - D14 If a person who is covered by point 1067L - D6 receives a single payment in respect of different kinds of leave, then, for the purposes of the application of points 1067L - D4 to 1067L - D13 (inclusive):
(a) each part of the payment that is in respect of a different kind of leave is taken to be a separate payment; and
(b) the income maintenance period in respect of the single payment is worked out by adding the leave periods to which the separate payments relate.
Definitions
1067L - D15 In points 1067L - D4 to 1067L - D14 (inclusive):
"payment fortnight" means a fortnight in respect of which an austudy payment is paid, or would be paid apart from the application of an income maintenance period, to a person.
"roll" -over , in relation to a lump sum leave payment, has the meaning that roll-over has in section 27D of the Income Tax Assessment Act 1936 in relation to an eligible termination payment.
Meaning of leave payment
1067L - D16 In points 1067L - D4 to 1067L - D15 (inclusive):
"leave payment" includes a payment in respect of sick leave, annual leave, maternity leave and long service leave.
Ordinary income includes certain periodical payments from relatives
1067L - D17 Subject to point 1067L - D18 (and despite paragraph 8(8)(z)), a person's ordinary income for the purposes of this Module includes a periodical payment or benefit by way of gift or allowance from the father, mother, son, daughter, brother or sister of the person.
Board and lodging
1067L - D18 A person's ordinary income is not to include a payment to the person for board or lodging provided by the person to the person's father, mother, son, daughter, brother or sister.
Ordinary income generally taken into account when first earned, derived or received
1067L - D19 Subject to points 1067L - D20, 1067L - D21, 1067L - D23 and 1067L - D24 and section 1073, ordinary income is to be taken into account in the fortnight in which it is first earned, derived or received.
Claimant or recipient receives lump sum amount for remunerative work
1067L - D20 If a person whose claim for austudy payment has been granted receives, after the claim was made, a lump sum amount that:
(a) is paid to him or her in relation to remunerative work; and
(b) is not a payment to which point 1067L - D21 applies; and
(c) is not an exempt lump sum;
the person is, for the purposes of this Module, taken to receive one fifty - second of that amount as ordinary income during each week in the 12 months commencing on the day on which the person becomes entitled to receive that amount.
Partner of claimant or recipient receives lump sum amount for remunerative work
1067L - D21 If:
(a) a person whose claim for austudy payment has been granted is a member of a couple; and
(b) after the person has made the claim, the person's partner receives a lump sum amount that:
(i) is paid to him or her in relation to remunerative work; and
(ii) is not a payment to which point 1067L - D23 applies; and
(iii) is not an exempt lump sum;
the partner is, for the purposes of this Module, taken to receive one fifty - second of that amount as ordinary income during each week in the 12 months commencing on the day on which the partner becomes entitled to receive that amount.
Operation of points 1067L - D20 and 1067L - D21
1067L - D22 Points 1067L - D20 and 1067L - D21 have effect even if the person who has made the claim is, during the period of 12 months referred to in those points, subject to a liquid assets test waiting period, or an income maintenance period, in respect of the allowance claimed.
Ordinary income received at intervals longer than one fortnight
1067L - D23 Subject to points 1067L - D4 to 1067L - D16 (inclusive), if:
(a) a person receives a number of ordinary income payments; and
(b) each payment is in respect of a period ( work period ) that is greater than a fortnight; and
(c) there is reasonable predicability or regularity as to the timing of the payments; and
(d) there is reasonable predicability as to the quantum of the payments;
the person is taken to receive in a fortnight falling within, or overlapping with, a work period an amount calculated by:
(e) dividing the amount received by the number of days in the work period ( daily rate ); and
(f) multiplying the daily rate by the number of days in the fortnight that are also within the work period.
Payment of arrears of periodic compensation payments
1067L - D24 If:
(a) at the time of an event that gives rise to an entitlement of a person to compensation, the person is receiving an austudy payment; and
(b) in relation to that entitlement, the person receives a payment of arrears of periodic compensation;
the person is taken to receive, in a fortnight falling within, or overlapping with, the periodic payments period, an amount calculated by:
(c) dividing the amount received by the number of days in the periodic payments period ( daily rate ); and
(d) multiplying the daily rate by the number of days in the fortnight that are also within the periodic payments period.
Note: For periodic payments period see section 17.
Partner income free area
1067L - D25 The partner income free area for a person is:
(a) if the person's partner is not receiving a social security benefit and has not turned 21--the amount of income of the partner (rounded up to the nearest dollar) beyond which youth allowance would not be payable to the partner if the partner were qualified for a youth allowance and were not undertaking full - time study (see section 541B); or
(b) if the person's partner is not receiving a social security benefit and has turned 21--the amount of income of the partner (rounded up to the nearest dollar) beyond which newstart allowance would not be payable to the partner if the partner were qualified for a newstart allowance; or
(c) if the person's partner is receiving a social security benefit--the amount of income of the partner (rounded up to the nearest dollar) beyond which that benefit would not be payable to the partner.
Partner income excess
1067L - D26 If:
(a) a person is a member of a couple; and
(b) the person's partner is not receiving a social security pension, service pension or a rehabilitation allowance; and
(c) the partner's ordinary income exceeds the partner income free area for the partner;
then:
(d) the person has a partner income excess; and
(e) the person's partner income excess is the amount by which the partner's ordinary income exceeds the partner income free area.
Partner income reduction
1067L - D27 If a person has a partner income excess, the person's partner income reduction is an amount equal to 70% of the person's partner income excess.
Example:
Facts: Alice's partner Martin has an ordinary income of $612. Assume that the partner income free area under point 1067L - D25 is $462.
Result: Martin's ordinary income exceeds the partner income free area. Alice therefore has a partner income excess under point 1067L - D26 of:
Alice's partner income reduction under point 1067L - D27 is therefore:
Ordinary income free area
1067L - D28 A person's ordinary income free area is $230.
Ordinary income excess
1067L - D29 If a person's ordinary income exceeds the person's ordinary income free area:
(a) the person has an ordinary income excess; and
(b) the person's ordinary income excess is the amount by which the person's ordinary income exceeds the person's ordinary income free area.
Ordinary income reduction
1067L - D30 If a person has an ordinary income excess, the person's ordinary income reduction is the sum of:
(a) the person's lower range reduction (if any) (see point 1067L - D31); and
(b) the person's upper range reduction (if any) (see point 1067L - D32).
Lower range reduction
1067L - D31 The person's lower range reduction is an amount equal to 50% of the part of the person's ordinary income excess that does not exceed $80.
Upper range reduction
1067L - D32 The person's upper range reduction is an amount equal to 70% of the part (if any) of the person's ordinary income excess that exceeds $80.
Example:
Facts: Further to the example at the end of point 1067L - D27, Alice has ordinary income of $265.
Result: Alice's ordinary income free area under point 1067L - D28 is $230.
Her ordinary income exceeds her ordinary income free area. She therefore has an ordinary income excess under point 1067L - D29 of:
Because her ordinary income excess does not exceed $80:
(a) her lower range reduction under point 1067L - D31 is:
(b) there is no upper range reduction under point 1067L - D32.
Her ordinary income reduction under point 1067L - D30 is therefore $17.50.
Alice's income reduction referred to in Step 4 of point 1067L - A1 is:
Module E -- Student income bank
Student income bank
1067L - E1 A person's ordinary income under Module D may be reduced under this Module. This diagram sets out how to work out:
(a) whether the person's ordinary income for a particular fortnight in respect of which austudy payment may be payable to the person, is to be reduced; and
(b) if it is to be reduced, the amount of the reduction.
Income bank credit
1067L - E2 A person's income bank credit for a particular income bank fortnight of the person is to be worked out as follows:
Method statement
Step 1. Assume that the person's income bank credit, at the time this Module starts applying to the person, is an opening balance of zero.
Step 2. If, for the person's first income bank fortnight, the person has an income credit under point 1067L - E3, add it to the opening balance.
Step 3. For each subsequent income bank fortnight of the person, up to but not including the fortnight in question, either:
(a) if the person has an income credit for that fortnight under point 1067L - E3--add it to the balance of the person's income bank credit in respect of all the previous fortnights, but not so as to increase the balance beyond $6,000; or
(b) if the person has, in respect of that fortnight, drawn from the person's income bank credit under point 1067L - E4--deduct from that balance the amount drawn, but not so as to reduce the balance below zero.
The result is the person's income bank credit for the fortnight in question.
Income credit
1067L - E3 For the purposes of point 1067L - E2, if the amount that would, apart from this Module, be the person's ordinary income for an income bank fortnight of the person is less than $230:
(a) the person has an income credit for that fortnight; and
(b) the income credit is an amount equal to the difference between $230 and the first - mentioned amount.
Drawing from income bank credit
1067L - E4 For the purposes of point 1067L - E2, if the amount that would, apart from this Module, be the person's ordinary income for an income bank fortnight of the person is greater than $230:
(a) the person is taken to have drawn from the person's income bank credit in respect of that fortnight; and
(b) the amount drawn is taken to be an amount equal to the difference between the first - mentioned amount and $230.
Income bank fortnight
1067L - E5 For the purposes of this Module, an income bank fortnight of a person is any fortnight in respect of which an austudy payment may be payable to the person.
Module F -- Remote area allowance
Remote area allowance--person physically in remote area
1067L - F1 An amount by way of remote area allowance is to be added to a person's rate of austudy payment if:
(a) the person's rate of austudy payment apart from this point is greater than nil; and
(b) the person's usual place of residence is situated in the remote area; and
(c) the person is physically present in the remote area.
Note 1: For remote area see subsection 14(1).
Note 2: A person may be considered to be physically present in a remote area during temporary absences (see subsection 14(2)).
Rate of remote area allowance
1067L - F2 A person's rate of remote area allowance is worked out using Table F. Work out which family situation in the table applies to the person. The rate of remote area allowance is the corresponding amount in column 3 plus the additional corresponding amount in column 4 for each child of the person, being a child to whom point 1067L - F8 applies.
Table F--Remote area allowance | |||
Column 1 Item | Column 2
Person's family situation | Column 3 Basic allowance | Column 4 Additional allowance for each child |
1 | Not a member of a couple | $17.50 | $7.00 |
2 | Partnered | $15.00 | $7.00 |
3 | Member of an illness separated couple | $17.50 | $7.00 |
4 | Partnered (partner in gaol) | $17.50 | $7.00 |
Note: For member of a couple , partnered , illness separated couple and partnered (partner in gaol) see section 4.
Meaning of remote area allowance
1067L - F3 In Table F, remote area allowance means an amount added to a person's austudy payment by way of remote area allowance.
In remote area
1067L - F4 For the purposes of Table F, a person is in the remote area if:
(a) the person's usual place of residence is in the remote area; and
(b) the person is physically present in the remote area.
Children must be physically present in Australia
1067L - F5 A person's remote area allowance is not to include additional allowance for a child unless the child is physically present in Australia.
Special rule if partner has a child but is not receiving a pension
1067L - F6 If:
(a) an additional allowance is to be included in the rate of remote area allowance for a person who is a member of a couple; and
(b) the person's partner is not receiving a social security pension or social security benefit; and
(c) the person's partner has a child to whom point 1067L - F8 applies;
the child is taken, for the purposes of this Module, to be a child of the person, being a child to whom point 1067L - F8 applies.
Special rule if partner has a child but is not receiving additional allowance for the child
1067L - F7 If:
(a) an additional allowance is to be included in the rate of remote area allowance for a person who is a member of a couple; and
(b) the person's partner has a child to whom point 1067L - F8 applies; and
(c) the person's partner is not receiving additional allowance for the child;
the child is taken, for the purposes of this Module, to be a child of the person, being a child to whom point 1067L - F8 applies.
Child to whom this point applies
1067L - F8 This point applies to a dependent child in respect of whom family allowance is payable at a rate exceeding the minimum family allowance rate.
Note 1: For dependent child see subsections 5(2) to (9).
Note 2: For minimum family allowance rate see subsection 6(1).