Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Amendment of the Student and Youth Assistance Act 1973
1 Title
Omit " students and young people ", substitute " certain students ".
2 Section 1
Omit " and Youth " .
3 Subsection 3(1) (definition of education institution )
Repeal the definition, substitute:
"education institution" means:
(a) a higher education institution; or
(b) a technical and further education institution; or
(c) a secondary school; or
(d) any other institution (including an educational institution), authority or body, that is in Australia and that, in accordance with a determination by the Minister, is to be regarded as an education institution for the purposes of this Act.
4 Subsection 3(1) (definition of higher education institution )
Repeal the definition, substitute:
"higher education institution" means an educational institution in Australia that, in accordance with a determination by the Minister, is to be regarded as a higher education institution for the purposes of this Act.
5 Subsection 3(1) (definition of prescribed benefit )
Omit "the AUSTUDY scheme or".
6 Subsection 3(1) (definition of secondary school )
Repeal the definition, substitute:
"secondary school" means an educational institution in Australia that, in accordance with a determination by the Minister, is to be regarded as a secondary school for the purposes of this Act.
7 Subsection 3(1) (definition of student assistance )
Repeal the definition.
8 Subsection 3(1) (paragraph (a) of the definition of student assistance benefit )
Repeal the paragraph, substitute:
(a) the AUSTUDY scheme under this Act as in force before 1 July 1998; or
9 Subsection 3(1) (paragraph (b) of the definition of student assistance benefit )
After "Scheme", insert "(including the Scheme as in force before 1 July 1998)".
10 Subsection 3(1) (paragraph (a) of the definition of student assistance overpayment )
Repeal the paragraph, substitute:
(a) an amount:
(i) paid under the AUSTUDY scheme under this Act as in force before 1 July 1998; and
(ii) that should not have been paid; or
11 Subsection 3(1) (paragraph (b) of the definition of student assistance overpayment )
Omit "12U(2)(c)", substitute "12U(2)(c) (including a debt accrued under either of those paragraphs as in force before 1 July 1998)".
12 Subsection 3(1) (definition of technical and further education institution )
Repeal the definition, substitute:
"technical and further education institution" means an educational institution in Australia that, in accordance with a determination by the Minister, is to be regarded as a technical and further education institution for the purposes of this Act.
13 Subsection 3(1) (definition of youth training allowance overpayment )
Repeal the definition.
14 After subsection 3(2)
Insert:
(2A) A determination by the Minister for the purposes of the definition of education institution , higher education institution , secondary school or technical and further education institution is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
15 Subsection 5(1)
Repeal the subsection, substitute:
(1) This Act binds the Crown in all its capacities.
16 At the end of Part 1
Add:
5D Minister may determine secondary and tertiary courses etc.
(1) The Minister may, for the purposes of this Act, determine in writing that:
(a) a course of study or instruction is a secondary course, or a tertiary course; or
(b) a part of a course of study or instruction is a part of a secondary course, or a part of a tertiary course.
(2) For the purposes of this section, a determination that:
(a) was made under paragraph 7(1)(c) as in force before the day on which this section commences; and
(b) was in force immediately before that day;
is taken to be a determination under subsection (1) of this section and may be amended or repealed accordingly.
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
17 Parts 2 and 4
Repeal the Parts.
18 Subsection 12A(1)
Omit "the AUSTUDY parental income test or".
19 Subsection 12A(1)
Omit "the AUSTUDY scheme or".
20 Subsection 12A(2)
Omit "AUSTUDY scheme or".
21 Subparagraph 12C(1)(b)(i)
Omit "the AUSTUDY scheme or".
22 Subparagraph 12C(1)(b)(ii)
Omit "AUSTUDY scheme or".
23 Subsection 12C(2)
Repeal the subsection, substitute:
(2) If:
(a) a person is undertaking a course of study or instruction, or a part of a course of study or instruction, offered by an education institution; and
(b) for the purposes of that course or that part of that course, the person is required or allowed by that institution to attend, and attends, a place other than:
(i) that institution; or
(ii) a place in respect of which a determination under subsection (3) is in force;
the person is, for the purposes of this section, taken to be undertaking that course or that part of that course wholly at that institution.
(3) The Minister may determine in writing that subsection (2) does not apply in relation to a place, or a class of place, specified in the determination.
(4) A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
(5) If a person is undertaking, or proposes to undertake, by correspondence with an education institution:
(a) a course of study or instruction; or
(b) a part of a course of study or instruction;
offered by that education institution, the person is, for the purposes of this section, taken to be undertaking that course, or that part of that course, wholly at that institution.
24 Section 12E
Omit "the AUSTUDY scheme or".
25 Subsections 12H(1) and (2)
Omit "the AUSTUDY scheme or" (wherever occurring).
26 After subsection 12X(5)
Insert:
(5A) The Minister must cause to be published in the Gazette before each 1 June the indexation factor worked out under subsection (4) (as affected by subsection (5)) in relation to the period of 12 months beginning on that day.
(5B) An indexation factor published under subsection 12ZZB(3) before the commencement of this subsection has effect as if it were an indexation factor published under subsection (5A).
27 After subsection 12ZF(7)
Insert:
(7A) The Commissioner must cause to be published in the Gazette before each 1 June the indexation factor worked out under subsection (6) (as affected by subsection (7)) that is applicable in working out FS debts and accumulated FS debts incurred in the 1 June concerned.
(7B) An indexation factor published under subsection 12ZZB(4) before the commencement of this subsection has effect as if it were an indexation factor published under subsection (7A).
28 Part 4B
Repeal the Part.
29 Part 6 (heading)
Repeal the heading, substitute:
Part 6 -- Overpayments arising under this Act and certain administrative schemes
30 Section 38
Repeal the section.
31 Before section 40
Insert:
Division 1 -- Debts recoverable by the Commonwealth
In this Part:
"debt" means an amount of any of the following kinds (whether the amount has arisen before or after the commencement of this Part):
(a) a special educational assistance scheme overpayment;
(b) a student assistance overpayment;
(c) an amount payable to the Commonwealth in relation to an amount of a kind referred to in paragraph (a) or (b) (including an amount payable under section 40 or subsection 42(10)).
39 Debts are recoverable by the Commonwealth
If a person:
(a) has been paid an amount of a kind referred to in paragraph (a) or (b) of the definition of debt in section 38; or
(b) incurs an amount referred to in paragraph (c) of that definition;
the amount is a debt owed by the person to the Commonwealth.
Division 2 -- Recovery of debts
39A Secretary may allow payment of debt by instalments
Decision of Secretary
(1) The Secretary may, on behalf of the Commonwealth, decide to allow a person to pay an amount of debt by one or more instalments.
When decision takes effect
(2) A decision made under subsection (1) takes effect:
(a) if a day is so stated in the decision as the day on which the decision takes effect--on the day so stated (whether that day is before, on or after the day on which the decision was made); or
(b) if a day is not so stated in the decision--on the day on which the decision is made.
Saving provision
(3) For the purposes of this section, a decision that:
(a) was made under section 284 as applied by subsection 43(2) as in force before 1 July 1998; and
(b) was in force immediately before that day;
is taken to be a decision under subsection (1) of this section.
32 Subsection 40(1)
Repeal the subsection, substitute:
(1) This section applies if a person has been paid (whether before or after the commencement of this subsection) an amount (the recoverable amount ) that is a special educational assistance scheme overpayment or a student assistance overpayment.
33 Subsection 40(5)
Repeal the subsection, substitute:
(5) Interest is not payable under this section in relation to the recoverable amount in relation to any period during which a decision under section 39A is in force in relation to the recoverable amount unless the decision provides that interest is to be so payable or an instalment is not paid in accordance with the decision.
34 Subsection 42(1)
Repeal the subsection.
35 Paragraph 42(2)(a)
Omit "recoverable amount", substitute "debt".
36 Subsections 42(3), (9) and (10)
Omit "recoverable amount" (wherever occurring), substitute "debt".
37 Subsection 42(11)
Omit "recoverable amount", substitute "debt referred to in paragraph (2)(a)".
38 Subsection 42(13)
Repeal the subsection, substitute:
(13) If a person has unsatisfied liabilities to the Commonwealth in relation to more than one debt, the Secretary may:
(a) for the purposes of this section, treat the debts as a single debt; but
(b) apportion any amount recovered under this section in relation to the debts in such proportion as the Secretary considers appropriate.
39 Section 43
Repeal the section, substitute:
Division 3 -- Non - recovery of debts
43 Secretary may write off debt
Writing off debt
(1) The Secretary may, on behalf of the Commonwealth, write off a debt.
Class of debts
(2) For the purposes of subsection (1), the Secretary may write off debts that are included in a class of debts determined by the Minister by notice published in the Gazette .
When decision takes effect
(3) A decision made under subsection (1) takes effect:
(a) if a day is stated in the decision as the day on which the decision takes effect--on the day so stated (whether that day is before, on or after the day on which the decision is made); or
(b) if a day is not so stated in the decision--on the day on which the decision is made.
Note: If the Secretary writes off a debt, this means an administrative decision has been made that, in the present circumstances, there is no point in trying to recover the debt. In law, however, this debt still exists and may later be pursued.
43A Power to waive Commonwealth's right to recover debt
Secretary's limited power to waive
(1) The Secretary may, on behalf of the Commonwealth, waive the Commonwealth's right to recover the whole or a part of a debt only in the circumstances described in section 43B, 43C, 43D, 43E or 43F.
When waiver takes effect
(2) A waiver takes effect:
(a) if a day is stated in the waiver as the day on which the waiver takes effect--on the day so stated (whether that day is before, on or after the day on which the decision to waive is made); or
(b) if a day is not so stated in the waiver--on the day on which the decision to waive is made.
Note: If the Secretary waives the Commonwealth's right to recover all or part of a debt, the waiver is a permanent bar to recovery of that debt or that part of the debt--that debt or that part of the debt effectively ceases to exist.
43B Waiver of debt arising from error
Administrative error
(1) Subject to subsection (2), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
Circumstances under which subsection (1) applies
(2) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with an obligation to provide information or documents to the Department under this Act, the debt is not raised within a period of 6 weeks from the end of the period within which the person was required to comply with that obligation;
whichever is the later.
Underestimating value of property
(3) If:
(a) a debt arose because the debtor, the debtor's partner, or the debtor's parent or parents underestimated the value of particular property; and
(b) the estimate was made in good faith; and
(c) the value of the property was not able to be easily determined when the estimate was made;
the Secretary must waive the right to recover the proportion of the debt attributable to the underestimate.
Proportion of a debt
(4) For the purposes of this section, a proportion of a debt may be 100% of the debt.
(5) In this section:
"parent" , in relation to a person, means:
(a) if the person is not an adopted child--a natural parent of the person; or
(b) if the person is an adopted child--an adoptive parent of the person.
"partner" has the same meaning as in the Social Security Act 1991 .
43C Waiver of debt relating to an offence
(1) If:
(a) a debtor has been convicted of an offence that gave rise to a proportion of a debt; and
(b) the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt;
the Secretary must waive the right to recover the proportion of the debt.
(2) For the purposes of this section, a proportion of a debt may be 100% of the debt.
The Secretary must waive the right to recover a debt if:
(a) the debt is, or is likely to be, less than $50; and
(b) it is not cost effective for the Commonwealth to take action to recover the debt.
43E Waiver in relation to settlements
Settlement of civil action
(1) If the Commonwealth has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
Settlement of proceedings before the Administrative Appeals Tribunal
(2) If the Secretary has agreed to settle proceedings before the Administrative Appeals Tribunal relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
Waiver where at least 80% of debt recovered and debtor cannot pay more
(3) If:
(a) the Commonwealth has recovered at least 80% of the original value of a debt from a debtor; and
(b) the Commonwealth and the debtor agree that the recovery is in full satisfaction of the whole of the debt; and
(c) the debtor cannot repay a greater proportion of the debt;
the Secretary must waive the right to recover the remaining 20% or less of the value of the original debt.
Agreement for part - payment in satisfaction of outstanding debt
(4) If the Secretary and a debtor agree that the debtor's debt will be fully satisfied if the debtor pays the Commonwealth an agreed amount less than the amount of the debt outstanding at the time of the agreement (the unpaid amount ), the Secretary must waive the right to recover the difference between the unpaid amount and the agreed amount.
Limits on agreement to accept part - payment in satisfaction of outstanding debt
(5) The Secretary must not make an agreement described in subsection (4) unless the Secretary is satisfied that:
(a) the debtor cannot repay more of the debt than the agreed amount; and
(b) the agreed amount is at least the present value of the unpaid amount repaid in instalments whose amount and timing are determined by the Secretary; and
(c) it would take at least 12 months to recover the unpaid amount under this Part if subsection (4) did not apply.
Formula for working out present value of unpaid amount
(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the following formula:
where:
"annual repayment" is the amount of the debt that the Secretary believes would be recovered under this Part in a year if subsection (4) did not apply in relation to the debt.
"interest" is the annual rate of interest specified by the Minister in a written notice.
"repayment period" is the number of years needed to repay the unpaid amount if repayments equal to the annual repayment were made each year.
Example:
Facts: Terry owed a debt of $8,000 to the Commonwealth. He has repaid $2,000 with the remaining debt being $6,000.
Terry, with the assistance of his mother, offers to make a single payment of $4,700 in full satisfaction, leaving $1,300 of the debt unpaid. Without Terry's mother's assistance, Terry can only pay fortnightly instalments amounting to $1,200 a year and, at that rate, would take 5 years to pay the remaining $6,000.
Assume that the Minister has specified an interest rate of 10%.
Result: The present value of the unpaid amount of $6,000 to be repaid in 5 years at a 10% interest rate is worked out as follows:
As the proposed payment of $4,700 is more than the present value of the unpaid amount (which is $4,548 as shown), and as the other conditions in subsection (5) apply, the Secretary may accept Terry's offer and make an agreement with him as described in subsection (4).
If the Secretary makes the agreement, the Secretary must, in accordance with subsection (4), waive the remaining $1,300 of the debt (being the difference between the unpaid amount of $6,000 and the agreed amount of $4,700).
Notice is a disallowable instrument
(7) A notice described in the definition of interest in subsection (6) is a disallowable instrument for the purpose of section 46A of the Acts Interpretation Act 1901 .
43F Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Note: Section 43 allows the Secretary to write off a debt on behalf of the Commonwealth.
40 Application
The amendments made by items 29 to 39 apply to debts arising before, on or after 1 July 1998.
41 Subsection 44A(1)
Omit "the AUSTUDY scheme or".
42 Section 48
Omit "under this Act other than Part 8 (including an amount under a financial supplement contract)", substitute "under a financial supplement contract".
43 Subparagraph 49(1)(a)(i)
Omit "a request under section 20 or 21 or".
44 Subparagraph 49(1)(a)(ii)
Omit "other than Part 8".
45 Subparagraph 49(1)(a)(iii)
Repeal the subparagraph, substitute:
(iii) to affect the rate of a benefit referred to in paragraph (a) of the definition of student assistance benefit ; or
46 Paragraphs 49(1)(b) and (c) and subsections 49(2), (3) and (4)
Omit "other than Part 8" (wherever occurring).
47 Subsections 50(1) and (2)
Omit "(other than Part 8)" (wherever occurring).
48 Paragraph 51(1)(a)
Omit "other than Part 8", substitute "(including an amount that was paid as a student assistance benefit under this Act as in force before 1 July 1998)".
49 Paragraph 55A(1)(a)
Repeal the paragraph.
50 Subsection 55A(1B)
Repeal the subsection, substitute:
(1AA) The Consolidated Revenue Fund is appropriated as necessary for the purposes of Part 2 of Schedule 11 to the Social Security Legislation (Youth Allowance Consequential and Related Measures) Act 1998 .
Note: Part 2 of Schedule 11 to the Social Security Legislation (Youth Allowance Consequential and Related Measures) Act 1998 makes various transitional provisions, with effect from 1 July 1998, that relate to the abolition of the Youth Training Allowance, AUSTUDY and Financial Supplement relating to AUSTUDY. Subsection (1AA) of this section enables money to be appropriated for purposes such as the payment of a benefit under the AUSTUDY scheme after 1 July 1998 following a review under a transitional provision in that Part of that Schedule.
51 Paragraph 56(a)
Omit "the AUSTUDY scheme or".
52 Paragraph 56(ab)
Omit "under the AUSTUDY scheme or".
53 Paragraph 56(e)
Repeal the paragraph.
54 At the end of section 56
Add:
(2) Regulations may also be made under this section to prescribe matters in relation to any transitional matters (including prescribing any saving or application provisions) arising out of:
(a) the abolition of:
(i) the youth training allowance; and
(ii) the AUSTUDY scheme; and
(iii) that part of the Student Financial Supplement Scheme that is connected with the AUSTUDY scheme; and
(b) their replacement by allowances, benefits or payments under the Social Security Act 1991 .
(3) Without limiting subsection (2), and in spite of any other provisions in this Act or any other Act, regulations under subsection (2) may modify the effect of a provision in Part 2 of Schedule 11 to the Social Security Legislation (Youth Allowance Consequential and Related Measures) Act 1998 so as to:
(a) enable a payment of a benefit under the AUSTUDY scheme (as previously in force under this Act) to be made to a person in respect of a period ending at the end of 3 July 1998 in specified circumstances; and
(b) enable such a payment, to the extent that it relates to the period beginning on 1 July 1998 and ending at the end of 3 July 1998, to be disregarded in determining the person's entitlement to any youth allowance or austudy payment under the Social Security Act 1991 ; and
(c) enable the receipt by the person of any youth allowance or austudy payment under the Social Security Act 1991 , to the extent that it relates to the period referred to in paragraph (b), to be disregarded in determining the person's entitlement to the payment referred to in paragraph (a).
55 Part 8
Repeal the Part.
56 Paragraph 302(a)
Repeal the paragraph.
57 Paragraph 302(c)
Omit "or" (last occurring).
58 Paragraph 302(d)
Repeal the paragraph.
59 Subsection 303(1) (note)
Repeal the note.
60 Subsection 303(2)
Repeal the subsection, substitute:
Decisions that are not reviewed
(2) Subsection (1) does not apply to a decision of the Secretary that relates to the Secretary's powers under section 326A to settle proceedings before the Administrative Appeals Tribunal.
61 Subsection 304(1) (note)
Repeal the note.
62 Subsection 304(2)
Repeal the subsection, substitute:
Period within which application for internal review to be sought
(2) An application under subsection (1) for the review of a decision must be made within:
(a) 3 months; or
(b) such longer period as the Secretary, in special circumstances, allows;
after the making of the decision.
63 Subsection 305(1)
Omit "benefit under the AUSTUDY scheme, Financial Supplement, or youth training allowance,", substitute "Financial Supplement".
64 Subsection 305(5) (definition of adverse decision )
Repeal the definition, substitute:
"adverse decision" means a decision under section 12R or 12T to stop the payment of Financial Supplement to a person.
65 Section 307
Repeal the section.
66 Paragraph 309(a)
Repeal the paragraph.
67 Paragraph 309(c)
Omit "or" (last occurring).
68 Paragraph 309(d)
Repeal the paragraph.
69 Subsection 311(1) (note)
Repeal the note.
70 Subsection 311(3)
Repeal the subsection, substitute:
Period within which application for review by SSAT to be sought
(3) An application under subsection (1) to the Social Security Appeals Tribunal for review of a decision must be made within:
(a) 3 months; or
(b) within such longer period as the Secretary, in special circumstances, allows;
after the original decision was affirmed, varied or set aside by the Secretary or an authorised review officer.
71 Section 312
Repeal the section.
72 Section 313
Repeal the section, substitute:
313 Non - reviewable decisions
The Social Security Appeals Tribunal cannot review a decision:
(a) under section 343 or 345 (notice requiring information from any person); or
(b) under section 305 or 314 (continuation of payment pending review of adverse decision).
73 Subsection 314(1)
Omit "benefit under the AUSTUDY scheme, Financial Supplement or youth training allowance", substitute "Financial Supplement".
74 Subsection 314(6) (definition of adverse decision )
Repeal the definition, substitute:
"adverse decision" means a decision under section 12R or 12T to stop the payment of Financial Supplement to a person.
75 Section 315
Repeal the section.
76 Subsections 316(2) and (3)
Repeal the subsections, substitute:
(2) If the Social Security Appeals Tribunal sets a decision aside and substitutes for it a decision that a person is entitled to Financial Supplement, the Tribunal must:
(a) assess the rate at which Financial Supplement is to be paid to the person; or
(b) ask the Secretary to assess the rate at which Financial Supplement is to be paid to the person.
77 Paragraph 316(5)(b)
Omit "benefit under the AUSTUDY scheme, Financial Supplement or youth training allowance", substitute "Financial Supplement".
78 Paragraphs 316(5)(d) and (e)
Repeal the paragraphs.
79 Paragraph 316(5)(g)
Omit "or" (last occurring).
80 Paragraphs 316(5)(h) and (i)
Repeal the paragraphs.
81 Subsection 316(7)
Repeal the subsection.
82 Section 317
Repeal the section.
83 Subsection 318(3)
Omit "subsections (4) and", substitute "subsection".
84 Subsection 318(4)
Repeal the subsection (including the note).
85 Subsection 318(6)
Repeal the subsection.
86 Section 319
Repeal the section.
87 Subparagraph 320(1)(a)(iii)
Repeal the subparagraph.
88 Subsection 322(2)
Repeal the subsection.
89 Paragraph 323(a)
Repeal the paragraph.
90 Paragraph 323(c)
Omit "or" (last occurring).
91 Paragraph 323(d)
Repeal the paragraph.
92 Section 326
Repeal the section.
93 Subsection 331(1)
Omit all the words after "by the Administrative Appeals Tribunal", substitute "were references to the Secretary".
94 Subsection 331(2)
Omit "or the Secretary to the Department of Social Security, as the case requires,".
95 Subsection 331(2)
Omit "128", substitute "1281".
96 Section 334
Omit all the words (other than the note) after "made the decision", substitute "were references to the Secretary".
97 Paragraph 335(1)(b)
Repeal the paragraph.
98 Subsection 335(3)
Omit "of the Department of which he or she is an officer".
99 Section 337
Repeal the section.
100 Subsection 338(1A)
Repeal the subsection.
101 Subsection 338(2)
Repeal the subsection, substitute:
Secretary may not delegate power under paragraph 355(1)(b)
(2) The Secretary must not delegate the Secretary's power under paragraph 355(1)(b) to anyone except the CEO.
CEO may not subdelegate power under paragraph 355(1)(b)
(2A) If the Secretary delegates to the CEO the Secretary's power under paragraph 355(1)(b), the CEO cannot, despite section 33 of the Agency Act, delegate the power to an employee of the Agency.
102 Subsections 338(3), (4) and (5)
Repeal the subsections.
103 Section 338A
Repeal the section.
104 Subsection 339(1)
Omit "Subject to subsection (2), the", substitute "The".
105 Subsection 339(2)
Repeal the subsection.
106 Subsection 341(1)
Omit "other than Part 8".
107 Subsection 341(2)
Repeal the subsection.
108 Subsection 343(2)
Repeal the subsection (except the note).
109 Subsection 344(2)
Repeal the subsection (including the note).
Note: The heading to subsection 344(1) is altered by omitting " other than Part 8 ".
110 Subsection 345(2)
Repeal the subsection (except the note).
Note: The heading to subsection 345(1) is altered by omitting " other than Part 8 ".
111 Section 346
Repeal the section.
112 Subsection 347(1)
Omit ", 345 or 346", substitute "or 345".
113 Paragraph 347(2)(d)
Omit "and".
114 Paragraph 347(2)(e)
Repeal the paragraph.
115 Subsection 347(3)
Repeal the subsection.
116 Subsections 347(7), (8) and (9)
Repeal the subsections.
117 Subsection 347(10)
Omit ", 345 or 346", substitute "or 345".
118 Section 348
Omit "of Social Security".
119 Section 349
Repeal the section.
120 Subsection 351(1)
Omit "or the Social Security Act".
121 Paragraph 351(2)(d)
Omit "or the Social Security Act".
122 Section 352 (note 2)
Omit "or the Social Security Act".
123 Paragraph 353(b)
Omit "or the Social Security Act".
124 Section 354
Omit "or the Social Security Act" (wherever occurring).
125 Paragraph 355(1)(a)
Omit "or the Social Security Act".
126 Section 358 (note 4)
Repeal the note.
127 Subsection 359(2) (note 3)
Repeal the note.
128 Subsection 359(3)
Omit "or the Social Security Act".
129 Schedules 1, 2, 3 and 5
Repeal the Schedules.
Part 2 -- Transitional provisions
130 Definitions
In this Part, unless the contrary intention appears:
"AAT" means the Administrative Appeals Tribunal.
"applicable decision" means a decision by an officer under the SA Act as in force at any time before the commencement day in relation to:
(a) the AUSTUDY scheme; or
(b) the youth training allowance; or
(c) the Student Financial Supplement Scheme, to the extent that it is in connection with the AUSTUDY scheme .
"authorised review officer" means an authorised review officer under the SA Act.
"commencement day" means 1 July 1998.
"officer" has the same meaning as in the SA Act.
"SA Act" means the Student Assistance Act 1973 , and includes any regulations in force under that Act .
"Secretary" means:
(a) in relation to a decision of the kind referred to in paragraph (a) or (c) of the definition of applicable decision --the Secretary to the Department of Employment, Education, Training and Youth Affairs; or
(b) in relation to a decision of the kind referred to in paragraph (b) of the definition of applicable decision --the Secretary to the Department of Social Security.
"SSAT" means the Social Security Appeals Tribunal.
131 Transitional provisions--AUSTUDY payment for period ending on 3 July 1998
(1) If:
(a) a payment of a benefit under the AUSTUDY scheme (including an advance payment) was made before the commencement day to a person in respect of a period that ends at the end of 3 July 1998; and
(b) the payment would have been lawfully made under the SA Act if that Act were not amended by this Schedule;
that payment is taken to have been lawfully made as if the SA Act as in force immediately before the commencement day had continued in force.
(2) To avoid doubt, subitem (1) does not affect the working out of an amount of student assistance benefit overpayment under Part 6 of the SA Act.
(3) In spite of any provision in any other legislation:
(a) a person's receipt of a benefit under the AUSTUDY scheme as referred to in subitem (1), to the extent that it relates to a period beginning on 1 July 1998 and ending at the end of 3 July 1998, is to be disregarded in working out the person's entitlement to any youth allowance or austudy payment under the Social Security Act 1991 ; and
(b) any youth allowance or austudy payment under the Social Security Act 1991 that the person receives, to the extent that it relates to that period, is to be disregarded in working out the person's entitlement to a benefit that is authorised to be paid under subitem (1).
132 Transitional provisions--claims and applications
(1) If:
(a) a person lodged an application for a benefit under the AUSTUDY scheme under the SA Act as in force before the commencement day; and
(b) the application is made in respect of a period commencing before that day; and
(c) the application was not dealt with before that day;
the application has effect, on and after that day, as if the SA Act as in force immediately before that day had continued in force.
(2) If:
(a) a person lodges a claim for a youth training allowance under the SA Act on or after the commencement day; and
(b) the claim is made in respect of a period commencing before that day;
the claim has effect as if it had been made immediately before that day and that Act as in force immediately before that day had continued in force.
(3) If:
(a) one of the following circumstances applies:
(i) a person lodges an application for a benefit under the AUSTUDY scheme under the SA Act on or after the commencement day;
(ii) a person lodges an application for a financial supplement in connection with a benefit under the AUSTUDY scheme under the SA Act on or after that day; and
(b) the application is made in respect of a period commencing before that day;
the application has effect as if it had been made immediately before that day and the SA Act as in force immediately before that day had continued in force.
(4) Nothing in this item permits the granting of a benefit under the AUSTUDY scheme, a youth training allowance or a financial supplement for a period after the commencement day.
Note: Section 56 of the SA Act is amended by this Schedule to enable regulations to be made to modify provisions in this Part of the Schedule so as to allow payments of AUSTUDY benefit to be made to a person for a period ending on 3 July 1998 in specified circumstances.
133 Transitional provisions--review of decisions made before commencement day
(1) Subject to subitem (4), if:
(a) an applicable decision might have been reviewed by the Secretary under section 303 of the SA Act before the commencement day; but
(b) the Secretary did not so review that decision before that day;
then, on and after that day:
(c) the Secretary may review that decision; and
(d) the review and any further review of the decision have effect;
as if the SA Act as in force immediately before that day had continued in force.
(2) Subject to subitem (4), if:
(a) a person might have applied to the Secretary, the SSAT or the AAT for a review of an applicable decision under Part 9 of the SA Act before the commencement day; but
(b) the person did not apply for such a review before that day;
then, on and after that day:
(c) subject to any limitation regarding the time during which such an application must be made under the SA Act as in force immediately before that day, the person may make the application; and
(d) the application and any review (including any further review) resulting from that application have effect;
as if the SA Act as in force immediately before that day had continued in force.
(3) Subject to subitem (4), if:
(a) an application to the Secretary, the SSAT or the AAT for a review of an applicable decision under Part 9 of the SA Act was made before the commencement day; and
(b) the application was not determined before that day;
then, on and after that day, the application and any review (including any further review) resulting from that application have effect as if the SA Act as in force immediately before that day had continued in force.
(4) The Secretary, an authorised review officer, the SSAT or the AAT, when determining a review because of the operation of subitem (1), (2) or (3), may make a decision in relation to the payment of a benefit under the AUSTUDY scheme, a youth training allowance or Financial Supplement only to the extent that the payment is in respect of a period that ends before the commencement day.
Note: Section 56 of the SA Act is amended by this Schedule to enable regulations to be made to modify provisions in this Part of the Schedule so as to allow payments of AUSTUDY benefit to be made to a person for a period ending on 3 July 1998 in specified circumstances.
(5) For the purposes of this item, if an applicable decision was the original decision that has been the subject of a review, or further review, by the Secretary, an authorised review officer, the SSAT or the AAT in accordance with the SA Act, a reference in this item to an applicable decision includes a reference to:
(a) if a decision has been affirmed in connection with that review or further review--the decision as affirmed; or
(b) if a decision has been varied in connection with that review or further review--the decision as varied; or
(c) if a decision has been set aside and a new decision substituted in connection with that review or further review--the new decision.
134 Transitional provisions--review of decisions made on or after commencement day
(1) Subject to subitem (2), if:
(a) on or after the commencement day an officer made a decision in relation to the AUSTUDY scheme, or in relation to the Student Financial Supplement Scheme in connection with the AUSTUDY scheme, under:
(i) Part 6 of the SA Act; or
(ii) the SA Act as continued in force because of this Part of the Schedule; and
(b) apart from the amendments to that Act made by this Schedule, a person would have a right to apply to the Secretary, the SSAT or the AAT under the SA Act for a review of that decision;
the person has that right as if the SA Act as in force immediately before the commencement day had continued in force.
(2) The Secretary, an authorised review officer, the SSAT or the AAT, when determining a review because of the operation of subitem (1), may make a decision in relation to the payment of a benefit under the AUSTUDY scheme or the payment of a financial supplement only to the extent that the payment is in respect of a period that ends before the commencement day.
Note: Section 56 of the SA Act is amended by this Schedule to enable regulations to be made to modify provisions in this Part of the Schedule so as to allow payments of AUSTUDY benefit to be made to a person for a period ending on 3 July 1998 in specified circumstances.
(3) For the purposes of this item, if a decision referred to in paragraph (1)(a) was the original decision that has been the subject of a review, or further review, by the Secretary, an authorised review officer, the SSAT or the AAT in accordance with the SA Act, a reference in subitem (1) to that decision includes a reference to:
(a) if a decision has been affirmed in connection with that review or further review--the decision as affirmed; or
(b) if a decision has been varied in connection with that review or further review--the decision as varied; or
(c) if a decision has been set aside and a new decision substituted in connection with that review or further review--the new decision.
135 Transitional provisions--obligations to waive the right to recover amounts
(1) In this item:
"applied provisions" means the provisions applied by subsection 43(2) of the SA Act as in force before the commencement day.
"recoverable amount" means an amount of any of the following kinds:
(a) a special educational assistance scheme overpayment;
(b) a student assistance overpayment;
(c) an amount payable to the Commonwealth in relation to an amount of a kind referred to in paragraph (a) or (b) (including an amount payable under section 40 or subsection 42(10) of the SA Act).
"Secretary" means:
(a) the Secretary to the Department of Employment, Education, Training and Youth Affairs; or
(b) the Secretary to the Department of Social Security.
(2) If a Secretary was, immediately before the commencement day, obliged to waive the right to recover a recoverable amount under the applied provisions, then, on and after the commencement day, the Secretary to the Department of Employment, Education, Training and Youth Affairs is taken to be obliged to waive that right as if:
(a) in the case of an obligation under subsection 290B(1) of the applied provisions, the obligation were an obligation under subsection 43E(1) of the SA Act; and
(b) in the case of an obligation under subsection 290B(2) of the applied provisions, the obligation were an obligation under subsection 43E(2) of the SA Act; and
(c) in the case of an obligation under paragraph 290B(3)(b) of the applied provisions, the obligation were an obligation under paragraph 43E(3)(b) of the SA Act; and
(d) in the case of an obligation under subsection 290B(4) of the applied provisions, the obligation were an obligation under subsection 43E(4) of the SA Act.