Bird, G. v Secretary of the Department of Employment, Education & Training

[1994] FCA 502

GEOFFREY BIRD v. SECRETARY OF THE DEPARTMENT OF EMPLOYMENT, EDUCATION AND
TRAINING
No. NG184 of 1994
FED No. 502/94
Number of pages - 5
Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES J

CATCHWORDS

Social Security - Higher Education Funding benefits - operation of Open Learning Deferred Payment Scheme - whether explanatory brochure constituted a contractual offer by the Commonwealth.

Higher Education Funding Act 1988 (Cth)
Higher Education Funding Amendment Act 1993 (Cth)

HEARING

SYDNEY, 17 June 1994
#DATE 25:7:1994

Counsel for the applicant: Litigant in person.

Counsel for the respondent: G. Elliott

Solicitor for the respondent: Australian Government Solicitor

ORDER

The Court Orders that:
1. The application be dismissed.
2. The applicant should pay the respondent's costs incurred since

7 April 1994.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J When these proceedings commenced, the applicant, Geoffrey James Bird, raised two matters in respect of which he sought relief. The first was that, on 28 March 1994, Mr Bird was informed that the fortnightly payments of Students' Assistance ("AUSTUDY") which he had been receiving had been cancelled. The second was that, on 7 February 1994, he had applied under the "Open Learning Deferred Payment Scheme" for payment in respect of 3 units in one study period and 3 units in another study period. He was informed that payment for 4 only of the 6 units would be authorised.

1. The first issue was disposed of by 7 April 1994. By that time, it had been realised that Mr Bird, who previously had been enrolled in a full time course at the University of New South Wales, had been accepted by the Open Learning Agency of Australia for a full time course and that he was enrolled in units which were conducted through the University of South Australia, Monash University and Griffith University. It was accepted that Mr Bird's AUSTUDY had been cancelled in error of the facts. The AUSTUDY grant was restored.

2. The second issue is the subject of these reasons for judgment. The relevant legislation is the Higher Education Funding Act 1988 (Cth) ("the Act") as amended by the Higher Education Funding Amendment Act 1993, which provides a scheme which is designed to allow students to defer payment of the basic charges of their courses until they have finished their study. The amending Act introduced the provisions with respect to the Open Learning Deferred Payment Scheme. Section 99(1) of the Act was amended to provide that "semester" means any two consecutive study periods. "Study period" is defined to mean "a period of 13 weeks commencing in March, June, September or December in any year to which this chapter applies on a date determined by the Minister by notice published in the Gazette". Mr Bird made application in respect of the first semester, the study periods commencing in March and June 1994.

3. Section 101(1) provides:-
   

"101(1) A client of the Agency is an eligible client in respect of a semester if:

(a) as at the census date for the semester, the client is enrolled to undertake:

(i) at least 2 units of study for the purposes of an approved course of study in the first study period of the semester; and

(ii) at least 3 units of study for the purposes of the course over the

semester; and

(b) the number of units of study for which the client has enrolled for the semester, together with the total number of units of study for which the client had previously enrolled for the purposes of the course, does not exceed 28; and ...".

Section 103(2) provides:-

"(2) The standard study load of an eligible client of the Agency in respect of a semester, is:

(a) in the case of the first semester for which the client enrols for the purposes of the course of study

undertaken by the client - 4 units of study; or

(b) in any other cae - the number of units of study that, together with the number of units of study for which the client was enrolled for the purposes of the course for the previous semester, equals 8."

Section 105(2) provides:-

"The eligible client must sign, and give to an appropriate officer, a document in the approved form:

(a) stating that the client asks the Commonwealth, in the event that on the census date for any semester the client:

(i) is an eligible client of the Agency; and

(ii) is enrolled to undertake in the

semester units of study for the

purposes of an approved course of study; and

(iii) has not paid the basic charges in respect of those units of study or, if the enrolment for the semester is in respect of a number of units of study that exceeds the client's standard study load for the semester, has not paid the basic charges in respect of the number of units of study included in that standard study load;

to lend to the client the amount of the charges and use the amount so lent to pay the charges on behalf of the client; and

(b) acknowledging that, if the Commonwealth complies with the request, the client will be liable to make payments under Part 5A.3."

Section 106 provides:-

"106(1) Subject to subsection (2), the Agency may not require an eligible client to pay the basic charge in respect of a unit of study in which the client has enrolled for a semester for the purposes of an approved course of study if, on the census date for the semester, the client is participating in the deferred payment scheme provided under this Chapter.

(2) If the client has enrolled for the semester in a number of units of study that exceeds the standard study load of the client for the semester, subsection (1) does not apply in relation to any unit of study in excess of the client's standard study load."

Section 106D provides:-

"106D (1) If an eligible client of the Agency who has chosen to participate in the deferred payment scheme has not, on or before the census date for a semester, paid the basic charge in respect of a unit of study for which the client is enrolled for the semester, the Commonwealth must, as a benefit to the client:

(a) lend to the client an amount equal to the charge; and

(b) apply the amount so lent in making a payment to the Agency in discharge of the client's liability to pay the charge,

(2) The Commonwealth may make advances to the Agency on account of an amount that is expected to become payable by the Commonwealth to the Agency under this section."

Section 106K provides:-

"106K(1) When the Commonwealth under section 106D:

(a) makes a loan to a person; and

(b) uses the amount lent to pay the basic charges that are payable by the person to the Agency in respect of units of study for which the person is enrolled in respect of a semester;

the person incurs an OL semester debt to the Commonwealth equal to the amount of the loan.

(2) The OL semester debt is taken to have been incurred immediately after the census date for the semester, whether or not the Commonwealth has made a payment to the Agency in respect of the charges."

1. When Mr Bird applied for the Open Learning Deferred Payment Scheme, he was enrolled in 4 units of study. A letter from Open Learning Australia dated 7 March 1994 confirmed Mr Bird's enrolment as follows:-
   

"Unit Study Year Provider university Amount Period Payable ABS11 1 1994 University of South Australia $305.00 Aboriginal Studies

ABS12 2 1994 University of South Australia $305.00 Aboriginal Studies

AUS11 1 1994 Griffith University $305.00 Australian Studies: Images of Australia AUS13 1 1994 Monash University $305.00 History and Politics: Out of Empire Total Fees payable: $1220.00

Total Fees paid: $1220.00"

Mr Bird in fact intended to undertake 6 units of study during the semester.

1. I agree with the submission of J.W. Elliott, counsel for the respondent, that, in accordance with the Act, Mr Bird was granted the benefits to which he was entitled under the Open Learning Deferred Payment Scheme in respect of the first semester of 1994 constituting the study periods commencing March and June 1994. The Act provides relevant benefits only in relation to a standard study load, as defined in s.103. In any event, when he made his application and when the subject decision was made, Mr Bird was enrolled for only 4 units, which was a standard study load.

2. Mr Bird did not contest the point that, under the Act, he was not entitled to a payment for more than the standard study load. However, he relied upon a brochure issued by the Australian Taxation Office and the Department of Education, Employment and Training, with respect to the Open Learning Deferred Payment Scheme. He submitted that the contents thereof constituted an offer which could be accepted by students so as to constitute a binding contract. He referred to page 5 of the brochure which said:-
   

". If you are eligible to apply for the scheme you will be required to sign a loan request form which can be obtained from the OLAA. This form will be a legal contract between yourself and the Commonwealth.

. In the contract the Commonwealth agrees to pay the basic charge for the units you undertake to the OLAA, up to 8 units per year or 28 units in total."

1. In my opinion, the Open Learning Deferred Payment Scheme is a statutory scheme and its terms are prescribed by the Act. The brochure was no more than an explanatory booklet. It did not purport to make a contractual offer of terms different from those set out in the Act. Of course, the making of an application under the Open Learning Deferred Payment Scheme and the acceptance thereof would give rise to a debt, which for many purposes may be regarded as a contractual debt. But the obligation is firmly based on s.106K of the Act.

2. I do not read the provisions of the brochure which are set out above as being inconsistent with the terms of the scheme specified in the Act. The Act allows for the payment of the basic charges for units up to 8 units per year. It does this by reference to standard study units, that is to say 4 units in a semester, there being 4 study periods which may commence in a year. The Act allows for payment in respect of up to 8 units per year and 28 units in total. But what the Act does not permit is a payment in respect of more than 4 units per semester, or a payment in respect of a unit for which the student is not enrolled.

3. It follows that, as at the time the decision was made, Mr Bird was enrolled in 4 units only, a standard study load. As the Act provided for the payment of the basic charges of the units for no more than the standard study load, the decision granting payment in respect of Mr Bird's 4 units was correct.

4. The application should therefore be dismissed. Mr Bird should pay the respondent's costs incurred since 7 April 1994.