Cordaro and Secretary, Department of Family and Community Services
[2004] AATA 1410
•24 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1410
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N2004/425
Re: Leonard Cordaro
Applicant
And: Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 24 December 2004
Place: Sydney
Decision: The decision under review is affirmed.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS
Youth allowance – activity test - accredited course at Masters level – course not expressly specified in schedule 2 of Determination 2002/1 made under the Student Assistance Act 1973 – course an integrated Masters course – applicant had completed two years of integrated Masters course – decision affirmed
Social Security Act 1991 ss.540, 541, 541B
Student Assistance Act 1973 s.5D
Re Secretary, Department of Family and Community Services and Hill (2004) 75 ALD 503
REASONS FOR DECISION
P.J. Lindsay, Senior Member
1. This application by Leonard Cordaro concerns his entitlement to the youth allowance, provision for which is made in Part 2.11 of the Social Security Act 1991 (the Act)
2. Qualification for youth allowance during a particular period is dependent upon meeting a number of criteria contained in Division 1 of Part 2.11. For example, an applicant must be under 25 and satisfy a residence test.
3. Of specific relevance to this application is section 540(a) of the Act which reads:
Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
(a) either of the following applies:
(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);…
Section 541(1) provides that, to satisfy the activity test in a period, a person will have to be undertaking full-time study. Section 541B(1)(c) requires the person to be enrolled in an approved course of education or study at an educational institution. The following definition is important:
Meaning of approved course of education or study
541B(5) For the purposes of paragraph (1)(c), the course is an approved course of education or 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.
4. Pursuant to s.5D(1) of the Student Assistance Act 1973 (the Assistance Act) the Minister for Education, Science and Training has made ‘Determination of Education Institutions and Courses under ss.3(1) and 5D(1) of the Student Assistance Act 1973’ (Determination 2002/1) which commenced on 1 January 2003. It will be necessary to consider the detail of Determination 2002/1 later in these reasons.
5. A number of matters are not in dispute between the parties and I make the following findings of fact:
(a) Mr Cordaro was born in Australia on 3 November 1979. He completed a Bachelor of Arts Communication (Media and Cultural Studies) degree from Charles Sturt University in 2001.
(b) Mr Cordaro enrolled in a course at the University of Technology Sydney and commenced his studies on 4 March 2002 as a full time student. The course is the Master of Law and Legal Practice, course code C04148. It can be completed in 3½ years of full time attendance. Mr Cordaro is one year from finishing the course.
(c) Mr Cordaro received youth allowance while studying for his Bachelor’s degree. He also received youth allowance during 2002 and 2003, that is while a candidate for the Master of Law and Legal Practice degree.
(d) In November 2003, Centrelink informed Mr Cordaro that his youth allowance was cancelled because it was not payable in respect of the Master of Law and Legal Practice course.
6. Mr Cordaro requested that the decision to cancel payment of youth allowance be reviewed. On 11 December 2003, Centrelink’s authorised review officer affirmed the decision to cancel the youth allowance (T13 in the documents lodged with the tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975). An appeal was heard by the Social Security Appeals Tribunal, but the decision to cancel was affirmed. Mr Cordaro’s present application to the Administrative Appeals Tribunal is for review of the SSAT’s decision.
7. At the hearing, Mr Cordaro gave evidence that he was accepted by the University of Technology Sydney into both the Master of Law and Legal Practice course and the Bachelor of Laws degree. He chose the former since it is a shorter course (3½ years compared to 4 years) and it is a higher level qualification.
8. The applicant visited the local Centrelink office in November or December 2001 to check whether he would continue to receive youth allowance if studying for the Master of Law and Legal Practice course. Contrary to a note made by a Centrelink officer of a conversation with the applicant on 30 November 2001 (T4), Mr Cordaro maintains he did not say that he was enrolled in a combined arts / law degrees program. At the interview, he produced a copy of his academic transcript from Charles Sturt University and a copy of a letter from the University of Technology Sydney stating that he had been accepted into the Masters course. He was told that, subject to producing proof of enrolment in the course, payment of youth allowance would go on. Confirmation of enrolment was subsequently provided. He said had he known that Centrelink would later cancel youth allowance because he was studying the Masters course, he would instead have enrolled in the Bachelor’s degree, which he thought would have entitled him to receive youth allowance.
9. The following information about the Master of Law and Legal Practice is taken from information published by the University of Technology Sydney (T33):
The Master of Law & Legal Practice is the first national example of a masters-level pathway into the profession of law.
The course provides a ‘one-stop’ legal education and a Masters all tied into one-degree program. It combines the core law subjects found in the Bachelor of Laws degree, followed by electives from the existing Masters of Law program, together with the practical legal training required for admission by the Legal Practitioner’s Admission Board. …
how is the course structured?
Masters students complete 168 credit points of subjects comprising:
– 96 credit points of core law subjects
- 36 credit points of masters level electives
- 36 credit points of practical legal training subjects …
practical legal training
The practical legal training component of the Master’s is offered in either of two formats:
- on-campus
- by distance [on-line]
10. The 2004 Law Handbook published by the University of Technology Sydney (T3) states that a non-law Bachelor’s degree is a requirement for admission to the Master of Law and Legal Practice. Further information from the Handbook’s section about postgraduate courses reads “Historically in NSW there have been only two pathways into the profession of law, through the LPAB Diploma or the Bachelor of Laws program. The Master’s is a third option for graduates of other disciplines who hope to practice law.” (exhibit R2)
11. Clause 7 of Determination 2002/1 - Determination of Education Institutions and Courses, made under ss.3(1) and 5D(1) of the Assistance Act provides:
Tertiary Courses
7 (1) For the purposes of the Act, a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.
(2) For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.
Schedule 2 – Tertiary courses
Column 1 - Course
Column 2 – Education institution
Undergraduate or postgraduate accredited higher education course which is at the level of:
…
Bachelor degree;
graduate degree;
…
graduate diploma;
…
Master’s qualifying course; or
a combined course which leads to two of these awards;
and is classified as such in the institution’s handbook and is not:
- a secondary course specified in Schedule 1; or
- a course at the level of a Masters or Doctoral degree unless otherwise specified in Schedule 2.
…
Higher education institution.
Registered training organisation
Integrated undergraduate / postgraduate course leading to a Master’s degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education course or related undergraduate and postgraduate accredited higher education courses that are not at the Masters level. (That is, excluding the year or years relating to study at the Masters level.)
Higher education institution
12. Mr Cordaro described the Master of Law and Legal Practice as a glorified Bachelor of Law degree. By way of explanation he pointed out that only 36 of the total 168 credit points of education are Masters electives and both graduate and undergraduate students must complete the same core subjects. Studies in the Masters electives begin only after the graduate student completes the core subjects. He said graduate and undergraduate students participate in the same level of tuition offered in each of the core subjects, and graduates are not required to attain a higher standard or mark than undergraduates in those subjects. He added that both graduate and undergraduate students complete the same practical legal training units. Graduate students may not study Masters electives until they have done all their core subjects.
13. It is undisputed, and I find, that the Master of Law and Legal Practice code C04148, is a course accredited at Masters level by the University of Technology Sydney, a higher education institution. Thus it is not determined to be a tertiary course for the purposes of the Assistance Act unless expressly specified in Schedule 2 to Determination 2002/1.
14. Mr Cordaro’s written submissions (T2) noted that youth allowance is not payable to candidates for traditional Masters courses, but he argued it should be payable to those studying for the Master of Law and Legal Practice as the course is not an extension of the same field of study covered in an undergraduate course. He submitted:
The MLLP program is a unique pathway into the law profession. This uniqueness compounded with it being relatively new leads me to believe that legislation has failed to address this course. For example the intent or purpose of the legislation is to achieve a situation where a qualified student will not be able to receive Youth Allowance for a masters program because they already have the ability to work within their qualified profession and should be able to support themselves. This is evidenced in the Minister’s determination that, “… no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.” The grouping together of Masters and Doctoral lends weight to my previous argument concerning the ability to support oneself when undertaking further education. The fact that the course is not specified in Schedule 2 is a reflection of its recent inception and uniqueness in course structure. However, in my case I cannot complete my Practical Legal Training – which will qualify me as a solicitor – until I have completed the ‘masters’ electives. My inability to practice as a solicitor leads me to believe that a misapplication of the legislation would result in relation to the MLLP.
15. I am unable to accept the submission, which is based on the applicant’s perception of Parliamentary intention, as I am bound to apply the legislation and the Determination according to their terms. I find that the Master of Law and Legal Practice is not expressly specified in schedule 2 of Determination 2002/1 and thus pursuant to clause 7(2) of the Determination is not regarded as a tertiary course for the purposes of the Assistance Act.
16. As a consequence of the above finding, Mr Cordaro’s course will be excluded as a tertiary course by clause 7(2) of the Determination unless it is falls in the category of course specified in schedule 2 as an “integrated undergraduate/postgraduate course leading to a Masters degree, excluding that year or years of the integrated course in excess of the normal full-time duration of the related undergraduate accredited higher education course or related undergraduate and postgraduate accredited higher education courses that are not at the Masters level. (That is, excluding the year or years relating to study at the Masters level.)” As neither party addressed the issue in detail at the hearing, written submissions were invited. Submissions were received from the parties. Each declined the opportunity to challenge the material the other put forward or make oral submissions about that material.
17. The respondent referred to an internal document, a determination entitled ‘Policy/Procedure: Clarification of the Treatment of Integrated Masters courses for Youth Allowance, Austudy and FaCS Pensioner Education Supplement (2004/0375)’, date of effect being 13 April 2004 (T3-42). Relevantly the document reads as follows:
Youth Allowance (YA), Austudy (AUS) and Family and Community Services Pensioner Education Supplement (FaCS PES) are not payable for Masters level study. However, some educational institutions structure their Masters courses with multiple entry and exit points, eg. Diploma, Bachelor Degree, Graduate Certificate, Graduate Diploma, or Masters. These are known as integrated undergraduate/postgraduate courses that lead to a Masters degree. As a consequence, some courses might be eligible for income support purposes even though the study forms part of a Masters level course.
A student would be able to receive income support if they are enrolled in an integrated undergraduate/postgraduate course leading to a Masters degree. The student is only eligible where the Masters course is structured in such a way as to demonstrate that there is a clearly identifiable exit point leading to a qualification received at less than Masters level (e.g. Graduate Certificate of [sic] Graduate Diploma).
If a student continues with the course by undertaking the subsequent and final component that leads to Masters award itself, they cease to be eligible for further income support.
The less than Masters component of the qualification needs to:
·be at less than Masters level i.e. the units making up this part should be accredited or be recognised as being at less than Masters level, and
·have a clear starting point and end point, i.e. a period of time and a set of units that make up the less than Masters qualification, and
·be undertaken full-time i.e. the workload of the student taking into account only the units from this part of the course must be equivalent to a full-time workload as defined for the purposes of income support.
…
The importance of integrated undergraduate/postgraduate course leading to a masters degree having clear exit points needs to be stressed.
For example a student participating in a Masters of Accounting, where the course is separated by first year study at Graduate Certificate or Diploma level and second year at Master level, is entitled to payment for the Graduate Certificate or Diploma level study only. Once the Graduate Certificate or Diploma level study has been completed and the course leads to second year at Masters level study then this following year is NOT payable according to Schedule 2 of the determination.
18. The respondent cited the decision of Member M Allen in Re Secretary, Department of Family and Community Services and Hill (2004) 75 ALD 503 for guidance in determining whether the Master of Law and Legal Practice offered by the University of Technology Sydney is an ‘integrated undergraduate/postgraduate course leading to a Masters degree …’ as specified in column 1 of schedule 2 to Determination 2002/1. After quoting dictionary definitions of ‘integrate’ and ‘integrated’, the words ‘integrated undergraduate/postgraduate course leading to a Masters degree …’ in Member Allen’s opinion “ … make it clear that what is referred to is a single course made up of all or part of related undergraduate and postgraduate courses. The combined course will include, (presumably in the postgraduate component) content that will be at Masters level and will lead to the granting of a Masters degree.” (at 510).
19. The Graduate Diploma in Law offered by the University of Technology Sydney (course code C06055) is not an accredited program of study for those who seek admission as legal practitioners. The diploma covers only 96 credit points of core law subjects. Candidates for the Master of Law and Legal Practice must complete those core subjects but as well undertake 36 credit points in Masters level electives and 36 credit points of practical legal training subjects (T33-141). According to the university’s 2004 Law Handbook, students enrolled in either the Masters or the Graduate Diploma course pay similar fees: $250 per credit point (T3-44). Admission requirements to each course is the same: a non-law Bachelor’s degree. The Masters can be completed in 3½ years of full-time study, the Graduate Diploma in 2 years full-time. Under the heading ‘Articulation and progression’ in the 2004 Law Handbook it is stated that “Graduate Diploma candidates who wish to transfer to the masters program should complete an Internal Course Transfer Application … Candidates do not take out the Graduate Diploma but transfer to the Master’s with advanced standing.” (T3-48) By contrast, both Masters and Diploma candidates wishing to transfer into the Bachelor of Laws program must submit an application through the Universities Admission Centre and cannot do so by way of internal course transfer.
20. In the respondent’s submission, although the Master of Law and Legal Practice allows students who complete the core law subjects, that are common to the Masters, the Bachelor of Laws and the Graduate Diploma, to graduate with an award of Graduate Diploma in Law, this will be the case only where the student is enrolled in the Graduate Diploma in Law course. It was submitted that a student enrolled in the Masters cannot transfer into the Graduate Diploma course at the end of two years and subsequently be awarded the Graduate Diploma in Law. That is, there was no early exit point for a Masters candidate. Candidates for the Masters degree cannot exit the course with the ability to practise as a legal practitioner without completing the final practical legal subjects at the end of the course.
21. The respondent noted that applicants wishing to transfer into the Bachelors course must apply externally, through the Universities Admission Centre, which recognises that the Bachelors is a separate course with different requirements for completion. For the respondent, the Master of Law and Legal Practice was not an integrated undergraduate/postgraduate course within the meaning of Determination 2002/1 because it was a separate and alternative course, at a higher level than the Bachelors degree or the Graduate Diploma. The respondent also considered it relevant that the Masters (3½ years) takes less time to complete than the Bachelors degree (4 years) and that if the Masters was an integrated course it would be expected that it would take longer to complete than the undergraduate course.
22. I am unable to accept the submission because it is contrary to evidence forwarded by the applicant. Mr Cordaro provided the tribunal with the section from the university’s 2005 Law Handbook dealing with the Graduate Diploma in Law (exhibit A1), where the following appears: ”Articulation. This course articulates into the Master of Law and Legal Practice. Candidates do not take out the Graduate diploma but subjects undertaken within the Diploma are applied towards the Master’s”. In addition, the applicant provided the following letter dated 22 October 2004 from Dr S Palassis, Director of Postgraduate Programs at the University of Technology, Sydney (exhibit A1):
To whom it may concern
Re: Transfer between postgraduate law courses
I wish to confirm that:
·A student enrolled in the Master of Law and Legal Practice (MLLP) course can after completion of two years fulltime (96 credit points of core law subjects) transfer into the Graduate Diploma of Law and graduate with this award instead of continuing with the MLLP.
·A student enrolled in the Graduate Diploma of Law can after two years (96 credit points of core law subjects) apply for a transfer into the MLLP course and gain credit for the completed subjects.
23. I am satisfied by the written material from the University of Technology Sydney in the T documents and in exhibit A1, that the Masters course and the Graduate Diploma in Law course are related postgraduate courses, as specified in Schedule 2 of Determination 2001/2. They cover identical subjects, apart from those at the Masters level; the fee structure for the core credit points is identical; and transfers between the courses require internal applications only.
24. In addressing the matters raised in the Departmental policy/procedure document (2004/0375) as indicating whether a Masters is an integrated undergraduate/postgraduate course, I note that the content of the Diploma course is restricted to the subjects that are common and compulsory for students in the Bachelors course and the Masters course. I do not consider those subjects to be masters level subjects. Thus there is a clear demarcation between the Graduate Diploma component and the Masters component of the integrated course.
25. The letter from Dr Palassis acknowledges that full time Masters students who have completed the core subjects in two years, may decide to leave with the Graduate Diploma by transferring into that course. It is clear that those enrolled in the Masters who elect to complete their study with a Graduate Diploma, do so at an identifiable exit point. Importantly, in terms of the policy outlined in the policy/procedure statement (2004/0375) and its example of the student taking an early exit from a Masters degree with a graduate diploma or certificate, those who elect not to progress into the articulated Masters, have an exit point clearly identified that leads to a qualification being received at less than Masters level. Just as significantly, the 2005 Handbook (exhibit A1) refers to the “articulation” of the Graduate Diploma course with the Masters and states “This course articulates into the Master of Law and Legal Practice”. The 2004 Handbook refers to “articulation and progression” by those Graduate Diploma candidates choosing to transfer into the Masters course. I take these references to mean that there is a joining of the courses effected by transferring into the Masters. There is a clear entry point from the Diploma course into the Masters.
26. Accordingly, I am satisfied that the Master of Law and Legal Practice is an integrated Masters course leading to a Masters degree as specified in Schedule 2 of the Determination, excluding the year(s) in excess of the related course, the Graduate Diploma in Law. However, the requirement that Masters degree students and Graduate Diploma students make external application for a transfer to the Bachelors degree implies that that degree is not part of the integrated course leading to the Masters.
27. It follows that I disagree with the SSAT’s decision. But the effect of the above finding is that the applicant should receive Youth Allowance only for the first two years of the Masters degree, as they relate to study that is not at the Masters level. It was the applicant’s evidence at the hearing that he has completed all of the core subjects and is now studying his electives. I agree with the finding by the SSAT that he would not be entitled to receive Youth Allowance for the balance of the course relating to the Masters level because those years are expressly excluded by schedule 2. Therefore the decision to cancel Youth Allowance from 29 November 2003, which in the absence of evidence to the contrary, I consider would probably include all of the Spring semester (cf the 2004 Spring semester’s conclusion on 12 November 2004, T3-55), is the correct and preferable decision as by that stage he had completed two years of study in the Masters degree. I note for completeness that at the hearing, Mr Cordaro was informed by Ms Green from Centrelink, representing the Secretary, that as a person undertaking training that might assist in finding work, he could consider applying for Newstart Allowance for the final 12 months of his course.
28. The decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member
Signed: .....................................................................................
AssociateHearing 23 September 2004
Final submissions received 26 October 2004
Decision 24 December 2004
Applicant Self-representedRespondent’s representative Centrelink
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