Brown and Secretary, Department of Family and Community Services
[2004] AATA 1015
•27 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1015
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/871
GENERAL ADMINISTRATIVE DIVISION ) Re Patrick Brown Applicants
And
Secretary, Department of Family and Community Services
Respondent
WRITTEN REASONS OF ORAL DECISION PURSUANT TO S43 OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Tribunal Ms N Bell, Senior Member
Date27 August 2004
PlaceSydney
Decision The Tribunal decides, for the reasons given orally, at the Hearing of this application, that the decision under review is set aside and the matter is remitted to the Respondent with directions that:
(i) Mr Brown will, if studying the courses at Birzeit University in 2004 that he has notified to the University of Sydney, be undertaking full time study and therefore will be satisfying the activity test for the purpose of section 540 of the Social Security Act 1991; and
(ii) His absence from Australia in 2004 studying the courses at Birzeit University that he has notified to the University of Sydney, will be for the purpose of undertaking studies that form part of the course of education within the meaning of section 1218 of the Social Security Act 1991.
…[sgd]............................
Ms N Bell,
Senior Member
SOCIAL SECURITY – Whether Applicant Eligible for Youth Allowance – Section 541
Social Security Act 1991
Student Assistance Act 1973
Acts Interpretation Act 1901
R v L (1994) 122 ALR 464
Newcastle City Council v GIO General Limited (1977) 149 ALR 623
Kingston v Keprose Pty Ltd (1987) NSWLR 404
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
WRITTEN REASONS FOR ORAL DECISION
27 August 2004 Ms N Bell, Senior Member 1.Mr Brown is a student at the University of Sydney and is in the final year of the Arts component of his Arts/Law degree. He has been accepted to study at the Birzeit University in Palestine with a view to studying there from September to December 2004. Mr Brown has been advised by the University of Sydney that the subjects he studies at Birzeit University will be credited to his Arts/Law course, however Birzeit University is not included in the University of Sydney's student exchange program, and Mr Brown will not be enrolled in the University of Sydney Arts/Law course while he is studying at Birzeit University.
2.Mr Brown seeks to be paid Youth Allowance for the duration of his studies in Palestine. The Respondent has decided that he does not qualify to be paid Youth Allowance for that period. Section 540 of the Social Security Act 1991 (“the Act”) provides that a person is qualified to be paid Youth Allowance if the person satisfies the activity test. Section 541 of the Act provides that a person satisfies the activity test if the person is undertaking full time study. Section 541B(1) of the Act sets out the circumstances in which a person can be taken to be undertaking full time study and provides:
“
For the purposes of this Act, a person is undertaking full-time study if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b) the person
(i)is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii)intends to undertake in the next study period for which he or she intends to enrol for the course;
either:
(iii) in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or
(iv) in a case to which subsection (1A) applies – at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and
(c)the course in question is an approved course of education or study (see subsection (5)); and
(d)in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.”
- I note that the questions of whether the requisite amount of study is proposed to be undertaken and whether satisfactory progress is being made are not in issue in this application. I turn first to the requirement in section 541B(1)(c) that the "course in question" is an approved course of educational study. Section 541B(5) of the Act provides that a course is an approved course of educational study if it is a course 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.
- There is a determination made under section 5D of the Student Assistance Act 1973. The Ministerial Determination of Educational Institutions and Courses, number 2002/1, makes it clear in Schedule 2 of that Determination that a tertiary course includes a graduate degree or combined course which leads to two of those awards but must, by the terms of that Schedule be conducted by "an education institution". The term “education institution” is defined in paragraph 5 of the Determination as including a higher education institution that is established under Commonwealth, or State, or Territory Government legislation. Birzeit University is therefore not an education institution within the meaning of the Determination and, therefore the Student Assistance Act 1973 and, it follows, section 541B of the Act.
- There is no dispute that the BA/LLB course at the University of Sydney is an approved course of educational study. Mr Brown submitted that in accordance with section 541B(1)(a)(ii) of the Act, when he is undertaking his study at the Birzeit University he will have been enrolled in a course of education at an education institution, that is, the BA/LLB course at the University of Sydney, and will be intending to re-enrol in that course when re-enrolments in the course are next accepted.
- This, Mr Brown says, is the "course in question" referred to in section 541B(1)(c) of the Act and, in effect, he seeks to have his study at Birzeit University disregarded and to rely instead on his intention to re-enrol in the BA/LLB course at the University of Sydney at the next enrolment opportunity.
- Ms Green for the Respondent submitted that "the course in question" refers to Mr Brown's study in Palestine. The Respondent also submitted that the words, "the course" appearing in section 541B(1)(a)(ii) of the Act refer to the course at Birzeit University. I cannot see how that can be the case.
- The course discussed in section 541B(1)(a)(i) of the Act is a “course of education at an educational institution”. There is only one course of that kind under discussion in this application and that is the B A/LLB course at the University of Sydney. The reference to "the course" continues in section 541B(1)(ii) and (iii) and 541B(1)(b) and then section 541B(1)(c) refers to the "course in question". There is only one course in question and that is the B A/LLB course at the University of Sydney. The interpretation urged by the Respondent is simply not available on the basis of the words of the text.
- I had regard to sections 15AA and 15AB of the Acts Interpretation Act1901 in considering this matter. Section 15AA provides that a construction of a provision that promotes the purpose or objects of an Act is to be preferred to one which does not. My difficulty here is that I do not consider that there is, reasonably, a construction available that is alternative to the one I have outlined based on the words of the text. In R v L (1994) 122 ALR 464 at 468-9 the Full Federal Court said:
“The requirement of section 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open section 15A(A)(1) of the Act 1901 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature.”
- Section 15AB of the Acts Interpretation Act 1901 allows for regard to be had to extrinsic material, such as the Explanatory Memorandum, for certain purposes. Those purposes include:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose and object underlying the Act, and;
(b) to determine the meaning of the provision where it is ambiguous or obscure or the ordinary meaning of the provision leads to a result that is manifestly absurd, or is unreasonable.
11.The purpose and object of the Social Security Act1991 as a whole is to provide for the payment of benefits to persons who are entitled to those benefits. Turning first to (a), the first purpose in section 15AB of the Acts Interpretation Ac 1901, that is, the confirmation of the ordinary meaning of the text, the Explanatory Memorandum says:
“
Paragraph 541B(1)(a) provides that a person must be enrolled in a course, or intend to re-enrol and have always intended to re-enrol in a course.The intention to re-enrol reflects the problem that in practice a person can be required to enrol at an educational institution several times (characteristically each year in the case of tertiary studies) during the course of the one course of study. If actual enrolment were the only relevant factor in determining whether a person is a full time student, there would be periods when a person who intends to continue in full time studies, or who is partly the way through a course of study would no longer fall within the definition. It would mean that full time students would not be exempt from the activity test during these periods (eg vacation times) despite their intention to remain in full time education. Subparagraph 541B(1)(a)(iii) extends the person's intention to re-enrol to situations where the person intends to enrol in another course after he or she completes that course in which he or she is studying currently. This treatment is necessary to ensure that where a person intends to move from say, secondary to tertiary study, or from undergraduate to post-graduate study, the person can still meet the definition of undertaking full time study and so still qualify for Youth Allowance.”
12.The purpose stated in the Explanatory Memorandum is not at odds with the ordinary meaning of the words of the section. The words of the section do the work that was intended to be done according to the Explanatory Memorandum. Therefore, the Explanatory Memorandum confirms the meaning of the text of the provision. The difficulty that arises in this application is that the text in the provision also does other work beyond the purpose stated in the Explanatory Memorandum, that is, it allows for a hiatus in enrolment of a different kind.
13.I turn now to (b), that is, the second purpose for which extrinsic material can be used according to section 15AB of the Acts Interpretation Act 1901, that is, where there is some ambiguity or obscurity in the provision, or where the ordinary meaning of the provision leads to a result that is manifestly absurd, or is unreasonable. There is some argument that the words of the text do produce a result that is absurd or unreasonable. The words of section 541B(1)(a)(ii) allow for satisfaction by Mr Brown of the activity test if he was enrolled in the BA/LLB course at the University of Sydney and intends to re-enrol, when enrolments are next accepted.
14.This pays no attention to the activity that he may be engaged in during the enrolment hiatus. In Mr Brown's case, that is of no concern because he will be undertaking serious studies which will be credited to his Bachelor of Arts award. However, the words of the text will also allow for an enrolment hiatus that would be spent, for example, snow-boarding. That result would be at the least unreasonable.
15.However, that does not allow me to give to the words in the provision a meaning that is unreasonable, or unnatural, or to, in effect, rewrite the law.
16.In Newcastle City Council v GIO General Limited (1977) 149 ALR 623 at page 642, McHugh J said:
“
If the legislature uses language which covers only one state of affairs, a Court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth (1997) 146 ALR 696 at 702, even when a Court adopts a purposive construction to remedial legislation, it is not at liberty to give it a construction that is unreasonable or unnatural. Nevertheless, when the purpose of a legislative provision is clear, a Court may be justified in giving the provision “a strained construction” [Kingston v Keprose Pty Ltd (1987) NSWLR 404 at 422 per McHugh JA] to achieve that purpose provided that the construction is neither unreasonable, nor unnatural.”
17.I consider that the construction of the words, "the course" and the words, "the course in question" in subsections 541B1(a)(ii) and 1(c), respectively, urged on me by the Respondent, is something more than “strained” and is indeed “unnatural or unreasonable”.
18.For these reasons, a purposive interpretation, or one which relies, to the exclusion of a literal interpretation, on the Explanatory Memorandum, is not available. I am left with the interpretation that is based on the ordinary meaning of the words in section 541B(1) and that, in my view, has the result that Mr Brown, when studying at the Birzeit University will be undertaking full time study and will therefore satisfy the activity test.
19.I note that the Respondent submitted two policy documents to the general effect that only a student who is undertaking a recognised holiday, or who is progressing to a new course, or new institution may avail themselves of the provision. I note that the Federal Court in Drake's case (1979) 46 FLR 409 stated that the Tribunal can, in the absence of "specifically defined criteria or considerations" look to and take into account Government policy. Where permissible, the Tribunal is entitled to treat such Government policy as a relevant factor in coming to its decision, That is just not the case here.
20.Mr Brown submitted, in addition, that he satisfies the requirements of section 1218 of the Social Security Act 1991 which provides that if a person, immediately before leaving Australia, was undertaking full time study as part of a course of education at an educational institution, and the person was receiving Youth Allowance, then if the person's absence from Australia is for the purpose of undertaking studies that form part of the course of education, then the person's right to continue to be paid Youth Allowance is not affected merely by their absence from Australia.
21.This raises the question of whether Mr Brown's study at Birzeit University forms part of his course of education at an educational institution. There is no dispute that the purpose of his absence from Australia is to undertake that study at Birzeit University. Two things stand against a positive answer to this question. First, Mr Brown's enrolment in the BA/LLB course at the University of Sydney will be deferred or suspended or discontinued.
22.Second, his studies at Birzeit University will not be part of a student exchange program. However, he will receive credit for his studies in Palestine. I note the terms of document T7, a letter to Mr Brown from the Manager of the Student Administration Services Unit at the University of Sydney to the effect that he has been granted permission to enrol in certain units of study at the Birzeit University "towards his current candidature in the award course of Bachelor of arts/Bachelor of law". It is then foreshadowed in the letter that he will receive credit for three courses intended to be undertaken by him in Palestine.
23.It would appear that, if not in strict form, then in substance, the courses undertaken by Mr Brown at Birzeit University will form part of his course of education at the University of Sydney. Given the absence in section 1218 of any reference to "enrolment", or to a student exchange program, or any other formal requirement, and given the beneficial purpose of the legislation, I do not consider that section 1218 should be interpreted in the restrictive manner urged by the Respondent.
Decision
- The decision under review is set aside and the matter is remitted to the Respondent with directions that:
(i) Mr Brown will, if studying the courses at Birzeit University in 2004 that he has notified to the University of Sydney, be undertaking full time study and therefore will be satisfying the activity test for the purpose of section 540 of the Social Security Act 1991; and
(ii) His absence from Australia in 2004 studying the courses at Birzeit University that he has notified to the University of Sydney, will be for the purpose of undertaking studies that form part of the course of education within the meaning of section 1218 of the Social Security Act 1991.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: Ms Linda Blue...................................................
AssociateDates of Hearing 27 August 2004
Date of Decision 27 August 2004
Solicitor for the Respondent Ms Jane Green
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