Student and Youth Assistance Amendment Act 1998
No. 40, 1998
An Act to amend the Student and Youth Assistance Act 1973, and for related purposes
[Assented to 4 June 1998]
The Parliament of Australia enacts:
This Act may be cited as the Student and Youth Assistance Amendment Act 1998.
2 Commencement
(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.
(2) If this Act does not receive the Royal Assent on or before 1 July 1998, items 19 and 20 of Schedule 1 are taken to have commenced on 1 July 1998.
(3) Item 7 of Schedule 1 commences on 1 January 1999.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Subsection 3(1) (definition of student assistance overpayment)
Omit “paragraph 12S(2)(d) or 12U(2)(c)”, substitute “paragraph 12QB(2)(d), 12QC(2)(d), 12S(2)(d) or 12U(2)(c)”.
2 Subsection 7(8)
Repeal the subsection, substitute:
(8) A person who received a benefit under this Part during a benefit period (see subsection (13)) may repay to the Commonwealth the whole or any part of the benefit only if the person does so as set out in subsection (9), (10) or (11).
(9) If the person is not receiving a financial supplement, the person may make the repayment if the person does so:
(a) in order to receive a financial supplement; and
(b) before the end of the benefit period.
(10) If the person does not make the repayment during the benefit period, the person may make the repayment after the end of the benefit period if:
(a) the person does so in order to receive a financial supplement; and
(b) in the opinion of the Secretary:
(i) the person has taken reasonable steps to repay the benefit before the end of the benefit period and been prevented from doing so because of circumstances beyond his or her control; and
(ii) the person repays the benefit as soon as the person is able to after the end of the benefit period; and
(c) the person repays the benefit before the end of the calendar year.
(11) A person who is receiving a financial supplement may make the repayment if the person does so:
(a) in order to receive a higher financial supplement; and
(b) while the person is an eligible student in respect of the year or part of the year in which the benefit was paid.
(12) If an amount of benefit is repaid under subsection (9), (10) or (11), the amount is taken, for the purposes of this Act, never to have been paid to the person.
(13) For the purposes of subsections (8), (9) and (10):
benefit period means:
(a) the part of a year beginning on 1 January and ending on 31 May; or
(b) the part of a year beginning on 1 July and ending on 30 September.
(14) Nothing in subsection (8) affects the operation of Part 6.
3 Subsection 12A(4) (last sentence)
Repeal the sentence, substitute:
There is a discount, worked out under subsection 12ZA(7) or (7A), for repayments made before the end of that period.
4 Subparagraph 12C(1)(b)(i)
Omit “, or apart from this Part would qualify,”.
5 Paragraph 12F(1)(a)
Omit “seeks to obtain financial supplement”, substitute “applies for benefits under the AUSTUDY scheme or the ABSTUDY scheme”.
6 Section 12G
Repeal the section, substitute:
(1) A person who receives a notice under section 12F stating that the person is an eligible student in respect of a year or part of a year, is entitled to apply for the whole or part of the financial supplement he or she is eligible to obtain in respect of the year or part of the year. To obtain financial supplement, the person must apply in accordance with this section.
(2) The person may obtain the financial supplement if the person applies for it while the person is an eligible student in respect of the year or part of the year, as the case requires.
(3) The person may also obtain the financial supplement if:
(a) the person was an eligible student during the year or part of the year, as the case requires; and
(b) the person applies for financial supplement before the end of the calendar year in respect of which, or a part of which, the person was eligible for financial supplement; and
(c) in the opinion of the Secretary, the person:
(i) had taken all reasonable steps to apply for the financial supplement while still an eligible student in respect of the year or part of the year and had been prevented from applying during the year or part of the year (as the case requires) only because of circumstances beyond his or her control; and
(ii) had taken steps to apply for financial supplement in respect of the year or part of the year as soon as practicable after ceasing to be an eligible student.
(4) An application for financial supplement must be made by lodging the form of application, duly completed, together with the notice issued under section 12F, at any office of a participating corporation.
(5) The Secretary must notify an applicant under subsection (3) and the corporation of a decision made under that subsection in respect of the applicant.
At any time after a person applies to a participating corporation for an amount of financial supplement, the person may by written notice to the corporation lodged at any office of the corporation tell the corporation that the person requires:
(a) a specified lesser amount of financial supplement (not being an amount that is less than the total financial supplement already paid to the person); or
(b) a specified greater amount of financial supplement (not being an amount that is greater than the maximum amount of financial supplement that the person is eligible to obtain).
7 After section 12K
Insert:
(1) An eligible student under a financial supplement contract has a right to cancel the contract. However, the student may waive the right to cancel the contract (see section 12KB). If the student waives the right to cancel the contract, subsections (2) to (6) do not operate in respect of that contract.
(2) To exercise the right to cancel the contract, the student must give to the participating corporation written notice that the student is withdrawing his or her application for financial supplement. The notice may be lodged at any office of the corporation.
(3) The student’s right is exercisable at any time within the period of 14 days (the cooling off period) after the day the corporation accepts the student’s application under subsection 12K(1).
Note: When the corporation accepts the student’s application a binding contract is formed—see subsection 12K(2).
(4) During the cooling off period the corporation must not make a payment to the student under the contract.
(5) If:
(a) the corporation makes a payment to the student under the contract before the end of the cooling off period; or
(b) the corporation makes a payment to the student after the end of the cooling off period and the student has exercised the right to cancel the contract within the cooling off period;
the payment is taken not to be a payment of financial supplement if an amount equal to the payment is repaid by the student to the corporation within 7 days after the day of the payment.
(1) An eligible student under a financial supplement contract may waive the right to cancel the contract.
(2) To exercise the right of waiver, the student must give to the participating corporation written notice that he or she is waiving the right to cancel the contract immediately after his or her application is accepted by the corporation under subsection 12K(1).
8 Section 12P
Repeal the section, substitute:
This Division provides for payments in respect of financial supplement to stop if the person in receipt of the financial supplement:
(a) so requests; or
(b) is found to be eligible for a reduced maximum amount of financial supplement and has already been paid that amount; or
(c) ceases to be, or is found never to have been, eligible for financial supplement; or
(d) dies.
9 After section 12Q
Insert:
(1) If:
(a) the Secretary reviews the decision (the original decision) made in respect of the student under section 12F; and
(b) the student remains an eligible student in respect of the year or part of the year to which the student’s financial supplement contract relates; and
(c) as a result of the review the Secretary varies the original decision so that the maximum amount (the original amount) of financial supplement that the student is eligible to obtain under the financial supplement contract is reduced (the revised amount); and
(d) the revised amount is less than the amount of financial supplement that the student has already been paid under the financial supplement contract;
the Secretary must give written notice to the student and to a participating corporation that must include the following:
(e) the revised amount that the student is eligible to obtain;
(f) the amount of financial supplement paid in excess of the revised amount;
(g) a statement that the corporation must cease paying financial supplement to the student.
(2) If notice is given to the corporation under subsection (1), then, unless the decision of the Secretary under subsection (1) is set aside or varied:
(a) as from the time the notice is given to the corporation, the corporation is discharged from liability to make further payments to the student under the contract; and
(b) if, despite paragraph (a), the corporation makes payments to the student after that time, any amounts so paid after the end of 4 weeks after the notice is given to the corporation:
(i) are taken not to be payments of financial supplement; and
(ii) are repayable by the student to the corporation; and
(iii) may be recoverable by the corporation as a debt due to it by the student.
(3) This section has effect subject to section 12ZX.
(1) If the Secretary decides that an eligible student to whom a notice is given under section 12QA failed to notify the Department under section 48 of the happening of a prescribed event in relation to the student within 7 days of the happening of the event, the Secretary may give written notice of the decision to the student and to the participating corporation.
(2) If notice is given under subsection (1), then, unless the decision of the Secretary under subsection (1) is set aside or varied:
(a) the corporation’s rights in respect of the student under the contract that relate to financial supplement paid by the corporation to the student after the end of the period beginning at the end of the period of 7 days referred to in subsection (1) and ending at the end of the period of 4 weeks referred to in paragraph 12QA(2)(b) (the wrongly paid financial supplement) are assigned to the Commonwealth, by force of this paragraph, at the time when the notice was given to the corporation; and
(b) any actual repayments of financial supplement made by the student before the notice was given to the student under subsection (1) are taken to have been made:
(i) first, in or towards repayment of the wrongly paid financial supplement; and
(ii) secondly, to the extent (if any) to which the sum of those repayments exceeded the amount of the wrongly paid financial supplement, in or towards repayment of the remainder of the financial supplement paid to the student under the contract; and
(c) the Commonwealth is liable to pay to the corporation in respect of the rights referred to in paragraph (a), the amount of any wrongly paid financial supplement that has not been repaid; and
(d) the student is liable to pay to the Commonwealth an amount equal to the sum of:
(i) the amount that the Commonwealth is liable to pay to the corporation under paragraph (c); and
(ii) the part of the total subsidy paid by the Commonwealth to the corporation in respect of the financial supplement paid to the student under the contract that was paid in lieu of interest on the principal sum in respect of the period beginning at the end of the period of 7 days referred to in subsection (1) and ending at the end of the period of 4 weeks referred to in paragraph 12QA(2)(b).
(3) Nothing in this section affects the operation of section 12QA.
(1) If the Secretary decides that false or misleading information was provided to the Commonwealth in relation to an eligible student to whom a notice is given under section 12QA, the Secretary may give written notice of the decision to the student and to the participating corporation.
(2) If notice is given under subsection (1), then, unless the decision of the Secretary under subsection (1) is set aside or varied:
(a) the corporation’s rights in respect of the student under the contract that relate to financial supplement paid by the corporation to the student during the period beginning at the end of the date on which the student was paid an amount equal to the revised amount referred to in paragraph 12QA(1)(e) and ending at the end of the period of 4 weeks referred to in paragraph 12QA(2)(b) (the wrongly paid financial supplement) are assigned to the Commonwealth, by force of this paragraph, at the time when the notice was given to the corporation; and
(b) any actual repayments of financial supplement made by the student before the notice was given to the student under subsection (1) are taken to have been made:
(i) first, in or towards repayment of the wrongly paid financial supplement; and
(ii) secondly, to the extent (if any) to which the sum of those repayments exceeded the amount of the wrongly paid financial supplement, in or towards repayment of the remainder of the financial supplement paid to the student under the contract; and
(c) the Commonwealth is liable to pay to the corporation in respect of the rights referred to in paragraph (a), the amount of any wrongly paid financial supplement that has not been repaid; and
(d) the student is liable to pay to the Commonwealth an amount equal to the sum of:
(i) the amount that the Commonwealth is liable to pay to the corporation under paragraph (c); and
(ii) the part of the total subsidy paid by the Commonwealth to the corporation in respect of the financial supplement paid to the student under the contract that was paid in lieu of interest on the principal sum in respect of the period beginning at the end of the date on which the student was paid an amount equal to the revised amount referred to in paragraph 12QA(1)(e) and ending at the end of the period of 4 weeks referred to in paragraph 12QA(2)(b).
(3) Nothing in this section affects the operation of section 12QA.
10 Subsection 12V(2)
Repeal the subsection, substitute:
(2) If a notice is given under subsection (1), the following provisions apply:
(a) as from the time the notice is given, the corporation is discharged from liability to make further payments to the student under the contract;
(b) the corporation’s rights in respect of the student under the contract are assigned to the Commonwealth, by force of this paragraph, at the time when the corporation ceased to make payments under the contract or at the end of 4 weeks after the time the notice was given, whichever is the earlier;
(c) the Commonwealth is liable to pay to the corporation in respect of those rights the amount worked out in relation to the contract as at the time when the corporation ceased to make payments under the contract or at the end of 4 weeks after the time the notice was given, whichever is the earlier, using the formula:
(d) the indebtedness of the student to the Commonwealth under the contract as a result of the assignment is discharged by force of this paragraph.
(3) If, despite paragraph (2)(a), the corporation makes payments to the student after the time the notice is given, any amounts so paid after the end of 4 weeks after that day:
(a) are taken not to be payments of financial supplement made under the contract; and
(b) are repayable from the student’s estate to the corporation; and
(c) may be recovered by the corporation as a debt due to it from the student’s estate.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 (which deal with service of documents) apply to a notice given under this section.
11 Subsection 12ZA(1)
After “paragraphs”, insert “12QB(2)(d), 12QC(2)(d),”.
12 Subsection 12ZA(5)
Omit “(7)”, substitute “(7) or (7A) ( as the case may be)”.
13 Paragraph 12ZA(6)(a)
Omit “subsection 12S(2)”, substitute “subsection 12QB(2), 12QC(2) or 12S(2)”.
14 Paragraph 12ZA(6)(b)
Omit “section 12U”, substitute “section 12QB, 12QC or 12U”.
15 Subsection 12ZA(7)
Omit “The”, substitute “If the student makes a repayment in respect of the amount outstanding under the contract that is less than the amount outstanding under the contract, the”.
16 Subsection 12ZA(7)
Omit “(the discount)”.
17 After subsection 12ZA(7)
Insert:
(7A) If the student makes a repayment in respect of the amount outstanding under the contract that equals that amount, the student is entitled, for the purposes of this Act, to a discount of an amount worked out using the formula:
18 Subsection 12ZA(8)
Omit “subsection (7)” substitute, “subsection (7) or (7A)”.
19 Subsection 12ZK(4)
Repeal the subsection, substitute:
(4) For the purposes of subsection (1):
(a) the minimum prescribed amount is:
(i) in the case of the year of income ending on 30 June 1998—$29,307; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out using the formula:
(b) the intermediate prescribed amount is:
(i) in the case of the year of income ending on 30 June 1998—$33,305; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out using the formula:
(c) the maximum prescribed amount is:
(i) in the case of the year of income ending on 30 June 1998—$46,629; or
(ii) in the case of a subsequent year of income—the number of whole dollars in the amount worked out using the formula:
where:
AWE is the sum of:
(d) the average weekly earnings for all employees for the reference period in the December quarter immediately before that year of income, as published by the Australian Statistician; and
(e) the average weekly earnings for all employees for the reference period in each of the 4 quarters immediately before that December quarter, as published by the Australian Statistician.
(5) For the purposes of subsection (4), the reference period in a particular quarter in a year is the period described by the Australian Statistician as the pay period ending on or before the third Friday of the middle month of that quarter.
(6) The Minister must cause to be published in the Gazette:
(a) before the start of the year of income ending on 30 June 1999; and
(b) before the start of each following year of income;
the minimum prescribed amount, intermediate prescribed amount and maximum prescribed amount in respect of that year of income.
20 Section 12ZL
Repeal the section.
21 Paragraph 12ZW(5)(b)
After “paragraph”, insert “12QB(2)(d), 12QC(2)(d),”.
22 Paragraph 12ZW(5)(d)
After “subparagraph 12Q(2)(b)(i),”, insert “12QA(2)(b)(i),”.
23 Paragraph 55A(1A)(b)
After “paragraph”, insert “12QB(2)(c), 12QC(2)(c),”.
24 Paragraph 305(5)(b)
After “section”, insert “12QA,”.
25 Paragraph 314(6)(b)
After “section”, insert “12QA,”.
[Minister's second reading speech made in—
House of Representatives on 25 march 1998
Senate on 13 May 1998]
(23/98)