Cormack and Secretary, Department of Family and Community Services

[2000] AATA 1000

DECISION AND REASONS FOR DECISION [2000] AATA 1000

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/175

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      ANNA CORMACK
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr E K Christie, Member   

Date15 November 2000

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         
  ..............(Signed)................................
  DR E K CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY – Austudy – progress rules for tertiary study – allowable time – levels of Austudy approved tertiary courses in law – meaning of "post graduate bachelor's degree" and implications for Austudy
Social Security Act 1991: s.569H
Re Baker and Ors and Department of Employment, Education, Training and Youth Affairs (1997) 47 ALD 756
Caswell v Powell Duffryn Associated Collieries Ltd[1940] AC 152 at 169

REASONS FOR DECISION

15 November 2000         Dr E K Christie, Member               

1. This is an application by Anna Cormack to review a decision of the Social Security Appeals Tribunal ("the SSAT"), made on 4 January 2000, that affirmed a decision of an Authorised Review Officer of Centrelink made on 20 September 1999.

2. The SSAT decided that:

   "….Ms Cormack has completed seven years full-time study, and one year part-time study at a Level B, bachelor degree course level.  This means that she is undertaking another course at the same level as her previous study and has already exceeded the allowable study time of the Bachelor of Law course.  The effect of this is that she does not satisfy the progress rules for a tertiary student.  The Tribunal therefore accepts that Centrelink was correct in rejecting her claim for Austudy in 1999."  (T2 Folio 7).

1. At the hearing, Ms. Anna Cormack represented herself.  The respondent was represented by Mr. Neil Foster, a Departmental Advocate.

2. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T" documents) (Exhibit 1).

3. At the end of the hearing, at the Tribunal's request, Mr. Foster agreed to provide further information on the levels of the following Austudy approved tertiary courses:

   Graduate Law entry program – QUT and University of Sydney;
   Master of Legal Science and Juris Doctor (UQ);
   Juris Doctor (University of Melbourne) and Bachelor of Letters (University of Melbourne).
   This information was provided by Mr. Foster on 24 October 2000  and submissions in response received from Ms. Cormack on 7 November 2000.         

FACTS

1. The following were the non-disputed facts:

• Ms. Cormack, as a full-time student, completed a Bachelor of Education from 1992 to 1996 inclusive.

• She completed a Bachelor of Business as a full-time student in 1997 and as a part-time student in 1998.

• She commenced a Bachelor of Laws course, as a full-time student at Bond University, in 1999.

ISSUES IN DISPUTE

1. The only issue for the Tribunal to decide was whether Ms. Cormack was qualified for Austudy payment for the Bachelor of Laws course at Bond University.  This issue would require a finding as to whether she satisfied the progress rules and, in particular, the level of the tertiary degree program, the Bachelor of Laws offered by Bond University.
   CONTENTIONS AND SUBMISSIONS OF THE PARTIES

2. Ms. Cormack acknowledged that she was not qualified for Austudy payment in respect of her current Bachelor of Laws degree because of her previous study at the Bachelor's level and the operation of the statutory provisions for progress rules and allowable time for tertiary studies.

3. However, Ms. Cormack contended that she met the requirements of the activity test (s.569A) because the degree program she was currently enrolled in was a Level A course.

4. Ms. Cormack based this contention on the following:

• That she was a graduate studying law;

• That a precedent for a graduate to receive Austudy payment when studying a Bachelor's degree had been set, as the following courses have considered to be Level A:

  (i)   Bachelor of Letters (Melbourne) – a graduate degree;

  (ii)MBBS (Graduate entry) program – a bachelor's degree in any tertiary course;  and

  (iii)Graduate entry:  Bachelor of Laws (Sydney) – a course in which graduate status is the means of entry;  and

  (iv)Juris Doctor ("JD" of Melbourne) – where entry is reserved for graduates other than law.

• That it was inequitable for the Bachelor of Law degree at Bond University to be considered a Level B course when students studying law at other institutions viz.  JD at Melbourne or "graduate entry" Bachelor of Laws (Sydney), were Level A courses;

• That the rationale which distinguished between Level A and Level B courses was uncertain.  It appeared that the distinction was not related to differences in rigour between level A and B courses but rather the need for a graduate status to enter the course;  and

• That she was not "milking the public purse" to pursue her law degree as she had taken the most expedient path to complete the degree and would finish the degree in 1½ years at Bond University - compared to the three years required at public universities.

1. Mr. Foster submitted that the purpose of the progress rules in s.569H of the Social Security Act was made clear as tertiary courses were classified into four levels and Austudy entitlements were a function of the restrictions imposed at each level.

2. Mr. Foster contended that Ms. Cormack did not satisfy the progress rules set out in s.569H of the Social Security Act. Accordingly, he contended that Ms. Cormack was not undertaking qualifying study under s.569A. In addition, Ms. Cormack did not satisfy the activity test under s.569 at the time of the claim. Consequently, Ms. Cormack was not qualified for Austudy payments under s.568 of the Social Security Act.

3. Mr. Foster referred to the following statement by the  Admissions Manager of Bond University:

   "….Please note that students wishing to receive a Law qualification from Bond University must initially complete a Bachelor of Laws degree, even if they already hold an undergraduate qualification.  Students with previous tertiary studies are eligible for credit towards the Bachelor of Laws program."  (T8 Folio 52)

Mr. Foster contended that the Bachelor of Laws degree course at Bond University was a normal undergraduate degree with entry following completion of Year 12 or a degree in a course other than law.  Consequently, the Bachelor of Laws degree course at Bond University was a Level B course.

1. Mr. Foster further contended that the Bachelor of Law degree course was undertaken at Bond University by Ms. Cormack, as a graduate in education and business. Accordingly, the Bond University Bachelor of Laws degree could not be construed a Level A course in her case on the basis that it complied with the requirements of s.569H(9)(a) of the Social Security Act:

   "  *  a post-graduate bachelor degree course with or without honours".

1. Mr. Foster referred  the Tribunal to the decision of Mathews J in Re Baker and Others and Department of Employment, Education, Training and Youth Affairs (1997) 47 ALD 756 where the meaning of "post-graduate bachelor degree course" was discussed at 763 under equivalent provisions contained in Regulation 38 of the Austudy Regulations 1990 (Cth):

   "The regulations do not define the term 'postgraduate bachelor degree', but it must be taken to refer to a course, leading to a bachelor degree, which is to be undertaken by students who are already graduates.  This means that a student moving from an ordinary undergraduate course (a group B course) to a postgraduate bachelor degree course (a group A course) will not in any event be subject to the restrictions in subreg 41(1), because the courses are at different levels of study."

1. It was Mr. Foster's contention that the Bachelor of Laws degree course undertaken by Ms. Cormack at Bond University was a normal undergraduate degree and that the level of study was similar for all students.  This was the case regardless of whether students entered the course at the end of Year 12 or, as in Ms. Cormack's case, had a degree in an area other than law.

2. Mr. Foster further contended that Ms. Cormack's previous degree studies in Education and Business had led to a situation in which she did not satisfy the requirements of s.569H of the Social Security Act to qualify her for Austudy for her law degree studies at Bond University. The allowable study time had been exceeded.

3. Moreover, certain matters which could be disregarded in determining whether Ms. Cormack had exceeded the allowable study time could not be applied in her case. These matters were set out in s.569H(7) of the Social Security Act. In Ms. Cormack's circumstances, only paragraph (a) was relevant. However, Ms. Cormack's previous degree courses were not standard pre-requisites for admission to the Bachelor of Law degree at Bond University. As such, the time taken for earlier degree courses completed by her could not be disregarded.

4. Mr. Foster concluded with the submission that entitlement to Austudy was intended to be limited.  He submitted that:

   "The legislature's intention that ongoing studies at the same level should not be funded by the community is also indicated in the explanatory memorandum of the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998, which introduced Austudy payment into the Social Security Act 1991. In referring to the activity test, the explanatory memorandum specifically refers to '…. The intention that AUSTUDY is intended to assist students to complete their secondary education and an initial tertiary qualification'."

SUPPLEMENTARY SUBMISSIONS

1. Mr. Foster provided the following submissions in relation to the Tribunal query on the status of the following courses for the purposes of Austudy payment:

   "(a)Re:  the three-year accelerated Bachelor of Laws at Queensland        University Technology for graduates from other degree programs

   This course is regarded as a Level A course because a bachelor degree qualification is required for entry into the course.
   (b)       Re:  the three-year Graduate Law degree at Sydney University
   This course is also considered to be a Level A course.  Access is restricted to people with a bachelor degree.
   (c)       Re:  the Master of Legal Science at University of Queensland
   Masters level studies are not included in the criteria for either Level A or Level B under the legislation and are not approved courses for the purposes of the Act (see s.569B). Subject to certain exceptions, a person is unable to qualify for austudy when undertaking Masters level study.
   (d)       Re:  the Juris Doctor (JD) at University of Melbourne
   Following discussions undertaken with the Department of Education, Training and Youth Affairs, the JD is considered to be the equivalent to a Masters qualification.  It is not a course for which a person may be eligible for austudy.
   (e)       Re:  the Bachelor of Letters (BLitt) at University of Melbourne
   This is a Level A course.  It requires completion of a bachelor's degree for admission into the course."

1. Ms. Cormack's supplementary submissions in response to Mr. Foster can be summarised as follows:
   That there was a similarity between her situation and those of graduates studying law at Q.U.T and the University of Sydney, because of the following contentions.

   (a)She was studying an accelerated LL. B;

   (b)That the substantive materials that a graduate studied in the LL.B. at Bond and the public universities was the same;

   (c)That graduates and non-graduates studying law study the same material;

   (d)That "our 1 assessment is the same as students without a degree";

   (e)That like the graduates studying law at Q.U.T. and the University of Sydney, she attended classes with students without a degree;  and

   (f)That like the graduates studying law at Q.U.T. and the University of Sydney, she was automatically entitled to exemptions because of her graduate status.

CONSIDERATION OF THE ISSUES

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The law is contained in the Social Security Act 1991 ("the Act").

2. The progress rules provided for in s.569H of the Act are relevant in deciding the issues in dispute.

   "569H  Progress rules – tertiary students
   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).

1 presumably a reference to Bond University

569H(3)  Allowable study time – full time students and 66% concessional study-load students.  The allowable study time for a course undertaken by a full-time student or a 66% concessional study-load student is:

(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.

569H(7)  Matters to be disregarded in determining whether someone has exceeded the allowable study time.  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;

….

569H(8)  Levels of tertiary courses.  There are 4 levels of tertiary courses.  Levels A, B, C and D.

569H(9)  Level A courses.  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.

569H(10)Level B courses.  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."

1. The Tribunal has some concern as to the issues raised by Mathews J in Baker's case (see paragraph 15 of this decision). In particular, the fact that the term "postgraduate bachelor degree" [Level A courses] is not defined in the Act. Without any such definition, the Tribunal makes the observation that there is uncertainty whether an inference can be made that such courses of study are at "different levels of study" to Level B courses. In particular, are the subjects offered in the Three-year Accelerated Bachelor of Laws at Queensland University of Technology and the Three-year Graduate Law Degree at Sydney University the same as Level B subjects offered in the respective Bachelor of Laws undergraduate programs – or, alternatively, are these subjects offered at "different level of study" [to Level B subjects]?  That is, whether they have a higher level of content or the content is similar, and whether different forms of assessment, including grading criteria, are used compared with the undergraduate course offerings.  In this regard there was no real evidence before the Tribunal to support inferences raised by Ms. Cormack [see paragraph 21(b), (c), (e)].

2. In relation to the question of inferences, the following statement is relevant:

   "There can be no inference unless there are objective facts from which to infer other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."  Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169.

Accordingly, in the absence of positive proved facts, the Tribunal can make no finding other than to conclude Ms. Cormack's arguments on these issues are speculative.

1. The Tribunal makes the observation that if the level of content and form of assessment (including grading criteria) are the same for the Level A Accelerated Bachelor of Laws compared with the Level B Bachelor of Laws offered by Q.U.T. – as well as the Level A Graduate Law degree at Sydney University compared with the level B Bachelor of Laws degree offered by Sydney University, then a clear anomaly in Austudy eligibility exists. Such a situation would not be one in keeping with the spirit and object of the Social Security Act.

2. This issue warrants a wider assessment and clarification by the Department of Family and Community Services with these universities in order to ensure social equity applies equally to all students – not only those enrolled in Bachelor of Laws degree programs – but also, all Bachelor degree programs in regard to their entitlement to Austudy. Clearly, the term "postgraduate bachelor's degree" needs to be defined in the Act for Austudy purposes, using criteria with sufficient particularity to distinguish a Level A post graduate bachelor's degree from a Level B Bachelor's degree course.

3. The clearest example, where no uncertainty exists with regard to a Level A post-graduate Bachelor's degree, is graduate entry into medicine at the University of Queensland.  A Bachelor's degree in any program is a pre-condition for entry into the Level A Bachelor of Medicine, Bachelor of Surgery program;  in addition the subjects are offered at a different level of study.  Such a precondition for entry into the Bachelor of Laws program at Bond University does not exist.

4. The Tribunal has carefully considered all the evidentiary materials and finds that the Bachelor of Laws degree program undertaken at Bond University by Ms. Cormack is a Level B course because:

• A bachelor degree qualification is not required for entry into the program.

1. Accordingly, the Tribunal finds that Mr. Cormack is not qualified for Austudy payment for the Bachelor of Laws course at Bond University.

2. For all of the above reasons, the decision under review is affirmed.  This means Ms. Cormack's application is unsuccessful.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member.

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  10 October 2000
   Date of Decision  15 November 2000
   Counsel for the Applicant        Ms. McCormack, herself
   Counsel for the Respondent    Mr. N. Foster, Departmental Advocate