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:
| full year course | 23(10C) |
| late starting course | 23(10D) |
| pensioner education supplement payday | 23(1) |
|
short course | 23(1) |
2 Subsection 7(6)
After “a mobility allowance”, insert “, a pensioner education supplement”.
3 Subsection 23(1)
Insert:
"full year course" has the meaning given by subsection (10C).
"late starting course" has the meaning given by subsection (10D).
"pensioner education supplement payday" means:
(a) the Wednesday that falls on 15 July 1998; and
(b) each succeeding alternate Wednesday.
"short course" means a course of education that lasts for 30 weeks or less including vacations.
4 After subsection 23(10B)
Insert:
(10C) For the purposes of this Act:
"full year course" means:
(a) a course of education that starts:
(i) on 1 January; or
(ii) after 1 January and before 1 April; or
(iii) on 1 July; or
(iv) after 1 July and before 1 August;
and lasts for more than 30 weeks (including vacations); or
(b) an articulated short course sequence whose first course starts:
(i) on 1 January; or
(ii) after 1 January and before 1 April; or
(iii) on 1 July; or
(iv) after 1 July and before 1 August;
and the length of whose courses (including vacations) add up to more than 30 weeks.
(10D) For the purposes of this Act:
"late starting course" means:
(a) a course of education that starts:
(i) on 1 April; or
(ii) after 1 April and before 1 July; or
(iii) after 31 July;
and lasts for more than 30 weeks (including vacations); or
(b) an articulated short course sequence whose first course starts:
(i) on 1 April; or
(ii) after 1 April and before 1 July; or
(iii) after 31 July;
and the length of whose courses (including vacations) add up to more than 30 weeks.
(10E) In subsections (10C) and (10D):
"articulated short course sequence" means a sequence of 2 or more articulated short courses that:
(a) is undertaken by a person during a 12 month period; and
(b) begins on the first day of the first course in the sequence; and
(c) ends at the end of the last day of the last course in the sequence.
(10F) For the purposes of subsection (10E), if:
(a) a person undertakes at least 2 short courses of education; and
(b) the person starts the second short course and (if applicable) each subsequent short course:
(i) within 28 days after completing the immediately preceding short course; or
(ii) within such longer period after completing the immediately preceding short course as the Secretary approves on being satisfied that this was due to circumstances beyond the person’s control; and
(c) each of the short courses is an approved course of education or study within the meaning of paragraph 1061PB(1)(b); and
(d) the person may, as a result of undertaking each of the short courses, receive an accreditation or an award from an educational institution for another approved course of education or study within the meaning of paragraph 1061PB(1)(b);
each of the short courses is an articulated short course .
5 After Part 2.24
Insert:
A person is qualified for a pensioner education supplement if the person:
(a) is undertaking qualifying study (see Subdivision B); and
(b) is receiving a payment attracting pensioner education supplement (see Subdivision C); and
(c) is of pensioner education supplement age (see Subdivision D); and
(d) meets the residency requirements under Subdivision E.
Note: Division 2 sets out situations in which pensioner education supplement is not payable even if the person qualifies for it.
General
(1) For the purposes of this Part, a person is undertaking qualifying study if the Secretary is satisfied that:
(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 1061PC); and
(c) the person is a full‑time student or a concessional study‑load student in respect of that course (see sections 1061PD and 1061PE); and
(d) the person satisfies the progress rules (see sections 1061PH and 1061PI).
Persons not undertaking qualifying study
(2) A person is not undertaking qualifying study 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).
Taken to be undertaking qualifying study from 1 January
(3) For the purpose of subsection (1), a person is taken to have been undertaking qualifying study from 1 January in a particular year if:
(a) the person is enrolled in a course of education that is a full year course starting before 1 April in that year; and
(b) the person starts his or her full year course before that day; and
(c) either:
(i) the person did not undertake full-time or part-time study for the whole, or a part, of the immediately preceding semester (excluding vacations); or
(ii) the person did not undertake full-time or part-time study for more than one semester (excluding vacations) during the immediately preceding 12 months and the Secretary is satisfied that this was due to the person’s illness or to other circumstances beyond the person’s control.
Taken to be undertaking qualifying study from 1 July
(4) For the purpose of subsection (1), a person is taken to have been undertaking qualifying study from 1 July in a particular year if:
(a) the person is enrolled in a course of education that is a full year course starting on or after 1 July in that year; and
(b) the person starts his or her full year course on or after that day; and
(c) either:
(i) the person did not undertake full-time or part-time study for the whole, or a part, of the immediately preceding semester (excluding vacations); or
(ii) the person did not undertake full-time or part-time study for more than one semester (excluding vacations) during the immediately preceding 12 months and the Secretary is satisfied that this was due to the person’s illness or to other circumstances beyond the person’s control.
Taken to be undertaking qualifying study until 31 December
(5) For the purpose of subsection (1), a person is taken to be undertaking qualifying study until the end of 31 December in a particular year if:
(a) the person completes his or her course of education after 15 September but before 31 December in that year; and
(b) the person’s course of education is a full year course or a late starting course.
Industrial instruments
(6) 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.
For the purposes of paragraph 1061PB(1)(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 1061PF.
(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 1061PF.
(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 Psychologist Society has stated in writing that the person:
(i) has an intellectual disability; and
(ii) cannot successfully undertake the normal amount of full‑time study in respect of the course because of the disability; or
(d) the person is receiving:
(i) a disability support pension, a carer payment or a pension PP (single) under this Act; or
(ii) an invalidity service pension or a carer service pension under the Veterans’ Entitlements Act; or
(e) the person has a dependent child aged less than 16 years and:
(i) is receiving a widow B pension under this Act; or
(ii) is a sole parent and is receiving a special benefit under this Act; or
(iii) is receiving a widow allowance under this Act; or
(iv) is receiving a pension under Part II of the Veterans’ Entitlements Act; or
(v) is receiving pension under Part IV of the Veterans’ Entitlements Act.
(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.
(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.
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.
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 1061PB(1)(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.
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.
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:
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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 Eduction 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) A person is receiving a payment attracting pensioner education supplement if the person is receiving:
(a) a payment under this Act set out in subsection (2); or
(b) a pension under the Veterans’ Entitlements Act set out in subsection (3).
Payments under this Act
(2) The payments under this Act are the following:
(a) a disability support pension;
(b) in the case of a person whose partner is receiving a disability support pension—a wife pension;
(c) a carer payment;
(d) a pension (PP) single;
(e) a widow B pension;
(f) a widow allowance;
(g) in the case of a person who is a sole parent—a special benefit;
(h) a rehabilitation allowance payable under clause 35 of Schedule 1A.
Pensions under the Veterans’ Entitlements Act
(3) The pensions under the Veterans’ Entitlements Act are the following:
(a) in the case of a person who has a dependent child—a pension under Part II of that Act;
(b) an invalidity service pension;
(c) in the case of a person whose partner is receiving an invalidity service pension—a partner service pension;
(d) a carer service pension;
(e) in the case of a person who has a dependent child—a pension under Part IV of that Act.
For the purposes of this Part, a person is of pensioner education supplement age if the person:
(a) is at least 16 years old; or
(b) is independent and has reached the minimum school leaving age for the State or Territory in which the person is living.
Application
(1) This section applies to determine whether a person is to be regarded as independent for the purposes of this Part. A person is not to be regarded as independent except as provided by this section.
Person with a dependent child
(2) A person is independent if:
(a) the person has a natural or adopted child who is wholly or substantially dependent on the person or his or her partner; or
(b) the person previously had a natural or adopted child who was wholly or substantially dependent on the person or on a person who, at the time, was the person’s partner.
Orphan
(3) A person is independent if both the person’s parents are dead, whether or not the person is dependent, or was last dependent, on someone other than his or her parents.
If parents cannot exercise responsibilities
(4) A person is independent if both of the person’s parents are (or, if the person has only one parent, that parent is):
(a) serving a prison sentence of at least 10 years; or
(b) mentally incapacitated and likely to remain so incapacitated for an indefinite period; or
(c) living in a nursing home and likely to remain there for an indefinite period; or
(d) missing;
whether or not the person is dependent, or was last dependent, on someone other than a parent of the person.
Refugee
(5) A person is independent if the person:
(a) is the holder, within the meaning of the Migration (1993) Regulations, of a Group 1.3 entry permit (permanent resident) (refugee and humanitarian); or
(b) while the holder of such a permit, was granted Australian citizenship.
However, a person is not independent under this subsection if the person has a parent living in Australia, or is wholly or substantially dependent on someone else on a long‑term basis.
Person in State care
(6) A person is independent if the person is not living with a parent, and:
(a) the person is in the guardianship, care or custody of a court, a Minister, or a Department, of the Commonwealth, a State or a Territory; or
(b) there is a current direction from such a court, Minister or Department placing the person in the guardianship, care or custody of someone who is not the person’s parent; or
(c) the person stopped being in a situation described in paragraph (a) or (b) only because of his or her age.
A person to whom this subsection applies is taken, for the purposes of this Part, to be in State care .
Unreasonable to live at home
(7) A person is independent if:
(a) the person cannot live at the home of either or both of his or her parents:
(i) because of extreme family breakdown or other similar exceptional circumstances; or
(ii) because it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well‑being due to violence, sexual abuse or other similar exceptional circumstances; and
(b) the person is not receiving continuous support, whether directly or indirectly and whether financial or otherwise, from a parent of the person or from another person who is acting as the person’s guardian on a long‑term basis; and
(c) the person is not receiving, on a continuous basis, any payments in the nature of income support (other than a social security benefit) from the Commonwealth, a State or a Territory.
For the purposes of this Part, a person meets the residency requirements if the person:
(a) is an Australian resident; and
(b) subject to section 1061PN, is in Australia.
General
(1) A person who is undertaking qualifying study is taken to be in Australia while the person:
(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 to have continued to be absent from Australia throughout the period from the time of the person’s return to the time when the person so left Australia.
Even though a person is qualified for a pensioner education supplement, the supplement may not be payable to the person because:
(a) the supplement has not commenced to be payable (see Subdivision B); or
(b) the person is subject to a newly arrived resident’s waiting period (see Subdivision C); or
(c) the person is subject to a multiple entitlement exclusion (see Subdivision D).
Note: A pensioner education supplement 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 4 of Part 3.13).
A pensioner education supplement is not payable to a person before the person’s provisional commencement day (see sections 1061PQ, 1061PR and 1061PS).
Subject to this Subdivision, a person’s provisional commencement day is the day on which the person claims a pensioner education supplement.
Subject to section 1061PS, if a person claims a pensioner education supplement within 4 weeks after becoming qualified for the supplement, the person’s provisional commencement day is the day on which he or she became qualified.
Claims made before 1 April
(1) If:
(a) a person claims a pensioner education supplement before 1 April in a particular year; and
(b) the person’s course of education is a full year course that starts before that day;
the person’s provisional commencement day is 1 January of that year.
Claims made before 1 August
(2) If:
(a) a person claims pensioner education supplement before 1 August in a particular year; and
(b) the person’s course of education is a full year course that starts in that year:
(i) on 1 July; or
(ii) after 1 July and before 1 August;
the person’s provisional commencement day is 1 July of that year.
A pensioner education supplement is not payable to a person while the person is subject to a newly arrived resident’s waiting period (see sections 1061PU and 1061PV).
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 resident 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.
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).
For the purposes of this Division, a person is subject to a multiple entitlement exclusion if the person is receiving a pensioner education supplement under the ABSTUDY scheme.
A pensioner education supplement is not payable to a person if the person is subject to a multiple entitlement exclusion.
Proper claim
(1) A person who wants to be granted a pensioner education supplement must make a proper claim for a pensioner education supplement.
Note For proper claim see section 1061PZ (form), section 1061PZA (lodgment of claim) and section 1061PZB (residence/presence in Australia).
Claim taken not to be made
(2) For the purposes of subsection (1), if:
(a) a claim for pensioner education supplement 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 pensioner education supplement;
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.
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 a pensioner education supplement or a person on behalf of a 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.
The Secretary must, in accordance with this Part, determine a claim for pensioner education supplement.
The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that:
(a) the person is qualified for a pensioner education supplement; and
(b) the supplement is payable.
Date of effect
(1) Subject to this section, a determination under section 1061PZE 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 pensioner education supplement; 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 pensioner education supplement; 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 pensioner education supplement; 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.
The pensioner education supplement rate is $60.00 per fortnight.
Pensioner education supplement becomes payable to a person on the first day on which:
(a) the person is qualified for the supplement; and
(b) no provision of this Act makes the supplement not payable to the person.
Note 1: For qualification see Subdivision A of Division 1.
Note 2: For circumstances in which a pensioner education supplement may not be payable see section 1061PO.
(1) Subject to section 1061PZJ, a full instalment of pensioner education supplement is payable to a person on each pensioner education supplement payday on which:
(a) the person is qualified for the supplement; and
(b) the supplement is payable to the person.
(2) If the person is outside Australia, the instalments referred to in subsection (1) are to be paid to the person on such pensioner education supplement paydays as the Secretary determines for the purposes of this subsection.
If:
(a) a person claims a pensioner education supplement on a particular day (the claim day ); and
(b) the person’s provisional commencement day is before the claim day; and
(c) there are one or more pensioner education supplement paydays on or after the provisional commencement day and before the claim day;
then:
(d) no instalment of pensioner education supplement is payable on that payday or those paydays; and
(e) a full instalment of pensioner education supplement in respect of that payday or each of those paydays is payable on the first pensioner education supplement payday on or after that payday or the last of those paydays.
Note: For provisional commencement day see Subdivision B of Division 2.
Payments to person
(1) Subject to subsection (2), instalments of a person’s pensioner education supplement are to be paid to the person.
Direction to pay to someone else
(2) The Secretary may direct that the whole or a part of the instalments of a person’s pensioner education supplement is to be paid to someone else on behalf of the person.
Payment in accordance with direction
(3) If the Secretary gives a direction under subsection (2), the instalments are to be paid in accordance with the direction.
Manner of payment
(1) An amount that is to be paid to a person under section 1061PZK 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.
If the Secretary is satisfied that an amount of pensioner education supplement 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.
Payment to person determined by Secretary
(1) If:
(a) a pensioner education supplement 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 pensioner education supplement 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 pensioner education supplement under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of pensioner education supplement.
Supplement absolutely inalienable
(1) Subject to subsections (2) and (3) and section 1359, pensioner education supplement 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 pensioner education supplement 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 pensioner education supplement 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 pensioner education supplement 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 a pensioner education supplement.
Court order not to apply to saved amount
(1) If:
(a) a person has an account with a financial institution; and
(b) instalments of pensioner education supplement 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 pensioner education supplement 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.
Secretary may give notice requiring information
(1) The Secretary may give a person to whom a pensioner education supplement 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 pensioner education supplement.
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 that 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 subsection (6), 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.
Refusal or failure to comply with notice
(7) 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
(8) 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 a pensioner education supplement 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 pensioner education supplement 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.
A determination that:
(a) a person’s claim for a pensioner education supplement is to be granted; or
(b) a pensioner education supplement is payable to a person;
continues in effect until:
(c) the supplement ceases to be payable under section 1061PZT, 1061PZU or 1061PZV; or
(d) a further determination in relation to the supplement under section 1061PZX or 1061PZY has taken effect.
Note 1: For paragraph (a) see section 1061PZE.
Note 2: For paragraph (b) see section 1061PZZA—this paragraph is relevant if the determination in question reverses an earlier cancellation or suspension.
Note 3: For paragraph (d) see also section 1061PZZ.
If:
(a) a person who is receiving a pensioner education supplement is given a notice under section 1061PZQ; 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 supplement; or
(ii) the supplement would, apart from this section, cease to be payable to the person; and
(f) the supplement is not cancelled before the end of the notification period;
the supplement continues to be payable to the person until the end of the notification period and then ceases to be payable to the person.
If:
(a) a person who is receiving a pensioner education supplement is given a notice under section 1061PZQ; 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 supplement; or
(ii) the supplement ceases to be payable to the person;
the supplement ceases to be payable to the person immediately before the day on which the event or change in circumstances occurs.
Supplement ceases to be payable
(1) If:
(a) a person who is receiving a pensioner education supplement is given a notice under section 1061PZR requiring the person to give the Department a statement; and
(b) the notice relates to the payment of the supplement 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 supplement ceases to be payable to the person as from the first day in that period.
Secretary may determine that supplement 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.
If:
(a) a person is receiving a pensioner education supplement on the basis of data in a computer; and
(b) the supplement 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 supplement;
there is taken to be a decision by the Secretary that the automatic termination provision applies to the person’s supplement.
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).
If the Secretary is satisfied that a pensioner education supplement 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 supplement is to be cancelled or suspended.
Note 1: A determination under this section is not necessary if an automatic termination is produced by section 1061PZT, 1061PZU or 1061PZV (see section 1061PZS).
Note 2: For the date of effect of a determination under this section see section 1061PZZC.
If:
(a) a person who is receiving a pensioner education supplement is given a notice under section 1061PZR, 1304 or 1305; and
(b) the person does not comply with the requirements set out in the notice;
the Secretary may determine that the supplement is to be cancelled or suspended.
Note 1: This section will not apply if section 1061PZT or 1061PZX applies.
Note 2: For the date of effect of a determination under this section see section 1061PZZC.
If:
(a) payment of a pensioner education supplement to a person is based upon data in a computer; and
(b) the supplement 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).
Secretary to determine supplement payable
(1) If the Secretary:
(a) cancels or suspends a person’s pensioner education supplement under section 1061PZX or 1061PZY; 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 a pensioner education supplement that was payable to the person; or
(ii) the person is not receiving a pensioner education supplement that is payable to the person;
the Secretary is to determine that a pensioner education supplement 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 of 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 1061PZZB.
Method of working out date
(1) The day on which a determination under section 1061PZZA ( 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 a pensioner education supplement; and
(b) a notice is given to the person to whom the supplement 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 a pensioner education supplement; and
(b) a notice is given to the person to whom the supplement 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 a pensioner education supplement; and
(b) no notice is given to the person to whom the supplement 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.
General
(1) The day on which a determination under section 1061PZX or 1061PZY ( 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 (6), 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) and (5), 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 supplement is affected
(4) If:
(a) the person whose supplement is affected by the adverse determination has contravened a provision of this Act (other than section 1061PZR, 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, the supplement 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.
Section 1061PZR statements
(6) If the adverse determination is made following a person having given the Department a statement about a matter in accordance with section 1061PZR, the determination takes effect on the day on which the matter arose.
6 At the end of Part 3.13
Add:
A pensioner education supplement is not payable to a person on a pensioner education supplement payday if on that payday the person is:
(a) in gaol; or
(b) undergoing psychiatric confinement because the person has been charged with committing an offence.
Note 1: For pensioner education supplement payday see subsection 23(1).
Note 2: For in gaol see subsection 23(5).
Note 3: For psychiatric confinement see subsections 23(8) and (9).