Gipalis, O. v Schnierer, K.O

[1987] FCA 374

374 9

C A T C H W O R D S

Educat lon - Studen t Ass l s t ance Ac t 1973, s.10 - whether s tudent enro l lcd

at the Un lve r s l ty Co l l ege of the Nor the rn Te r r l t o ry p roceed lng to a B.A. (Q.)

IS under tak lng a t e r t l a r y c o u r s e at a Unlverslty.

ODYSSEUS CIPALIS (Flrs t appl lcant) , THE ATT0RNF.Y-GFNF RAL FOR THE

NORTHERN TERRITORY OF AUSTRALIA (Second appl lcant) v.

KAREN SCHNIERER (Respondent)

No. NTC 5 of 1987

Beaurnont

J.

Darwln

9 Ju ly 1987.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 5 of 1987

GENERAL DIVISION

BETWEEN: ODYSSEUS GIPALIS

Fi rs t appl rcant

AND: ATTORNEY-GENERAL THE FOR

THE NORTHERN T E R R ~ Y - F	-
AUSTRALIA

Second appl icant

SCHNIEllER KARE AND:

Respondent

JUDGE MAKING ORDER:	BEAUMONT	J.
DATE MADE:	9 JULY 1987
WHERE MADE:	DARWIN

MINUTES OF ORDER

THE COURT ORDERS:

1. D e c l a r e t h a t , f o r t h e p u r p o s e s of s.10 of t h e S t u d e n t A s s l s t a n c e A r t

1973, t h e flrst appl lcant IS undertaking a c o u r s e of s tudy t h a t t h e

M m s t e r h a s d e t e r m l n e d IS a t e r n a r y c o u r s e at an edura t lon Ins t l t u t lon ,

namely , The Unlvers l ty of Queensland.

2. Rese rve l l be r ty to t h e f l r s t a p p l l c a n t to apply , on seven days ' nonce ,

fo r fu r the r r e l l e f I f so advlsed.

3. O r d e r t h a t t h e r e s p o n d e n t p a y t h e a p p l l c a n t s ' costs.

No te : Se t t l emen t and en t ry of o r d e r s IS dea l t w l th in Orde r 36

of the Fede ra l Cour t Ru les .

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY No. NTC 5 of 1987

GENERAL DIVISION

BETWEEN:	ODYSSEUS	CIPALIS
Flrst appllcant

AND:

THE ATTORNEY-GENERAL FOR

THE NORTHERN TERRITORY OF

AUSTRALIA

Second appllcant

AND: KAREN SCHNIE &R

Respondent

CClRAM: BEAUMONT J.

DATED : 9 July 1987

REASONS FOR JUDGMENT

The flrst appllcant clalms to be entltled to the grant of educatlon

assistance under the provlslons of s.10 of the Student Asslstance Act 1973 ("the

Act") whlch, so far as relevant, are as follows:

"An authorized person may, subject to and In accordance wlth the

regulatlons, approve the grant of Educatlon Asslstance to a person who 1s

an Australlan cltlzen or a permanent resldent of Australla and I S undertaklng,or proposes to undertake, at an educatlorl lnstltutlon a course of study .... that the Mlnlster has determned In wrltlng	ls....a	tertlary course for the purposes of this sectlon ....'l
An "educatlon mstltutlon" IS deflned to mclude "a unlverslty" whlch,

In turn, IS defmed to mean an educatlonal msfltutlon In Aus?ralla that under the

regulatlons, IS to be treated as a unlverslty for the purposes of the Act. The

regulatlons provlde that, for the purposes of the Act, an educatlonal lnstltutlon

In Austraha that IS a unlverslty for the purposes of the Commonwealth .- Terrlary

2.

Educatron Cornrnlsslon Act 1977, IS t o be treated as a un~vcrslty (Reg.29(4)).

By that Act, a "unlverslty" means an mstltutlon spcclfled In Schcdule l t o the

statute (s.4(1)).	In the schedule, a number of unlversltles IS speclfled. For
Instance, under	the sub-headlng "Queensland", The Unlverslty of Queensland,

Jarnes Cook Unlverslty of North Queensland and Crl f f l th Unlverslty are

rnentloned. Under "Terrltorles", only The Australlan National Unlverslty IS

speclfled. For reasons whlch w ~ l l subsequently appear, thc appllcants accept

that they can succeed here only I f It 1s establlshed that the flrst appllcant,

withln the rneanlng of s.10 of the Act, IS undertak~ng a course of study at

The Unlverslty of Queensland.

Pursuant to s.10 of the Act, by a determlnanon made on 23

December 1986, operatlve from 1 January 1987, the Mlnlster deterrnlned that,

Included in tertlary courses for the purposes of that p r o v ~ o n IF -

"(a)	a course that IS conducted by a unlverslty ...	and that I S -
....

(11) an undergraduate bachelor degree course ..."

Agaln, I t IS accepted by the appllcants that they cannot succeed

here unless the provlslons of thls determlnatlon are satlsfled.

The flrst appllcant has enrolled as a full tlrne student at the

Unlverslty College of the Northern Terrltory ("the College"). However, he

15 undertaklng the degree course of Bachelor of Arts, the degree bang

offered by The Unlverslty of Queensland ("the Unlverslty") In CIrcumStances

whlch wlll appear later.

3.

The Co l l ege IS es tab l l shed by t h e Urn- Col lcge of thC

N o r t h e r n T e r r l t o r v A c t 1985 (N.T.). Amongst Its f u n c t ~ o n s a r e -

"(a) to provlde undergraduate cduca t lon ...

(b) to co -ope ra t e w l th .... unlverslt les. ..., whethe r In t h e

Te r r l t o ry o r e l s ewhere , In r e l a t lon to such educa t lon ....l'

(s.5).

The Col lege Councl l I S to Inc lude two pe r sons nomlna ted by the

Unlversl ty (s.lO(l)(d)). The Councl l may cause lns t ruc t lon to be g lven to

s t u d e n t s f o r t h e p u r p o s e of completing t h e r e q u l r e m e n t s f o r a d e g r e e or

o t h e r a w a r d of any un lve r s l ty wl th wh lch the Nor the rn Te r r l t o ry o r t he

Counc l l has made an ag reemen t ( see 5.21).

By ag reemen t made on 2nd December 1985 be tween thc Un lvc r s l ty ,

t h e N o r t h e r n T e r r l t o r y of Aus t r aha and the Un lve r s l ty P lann lng Au thor l ty , a

body co rpora t e e s t ab l l shed by the Un lve r s l ty ( In t e r lm Ar rangemen t s ) Ac t 1980

(N.T.) I t was ag reed tha t t he Te r r l t o ry wou ld establish the Co l l ege wh lch In t h e

ca l enda r yea r s 19x7-I991 w ~ l l p r e p a r e s t u d e n t s f o r t h e U n l v c r s l t y d e g r e e s of

Bachelor of Ar t s and Bache lo r of h e n c e and ce r t a ln o the r deg rees (Ar t . 2).

The Unlvers l ty IS to m o n l t o r t h e t e a c h l n g of cour ses fo r Its d e g r e e s a n d to

provlde oppor tunl ty In Br l sbane and Darwln for contac t be tween Unlverh l ty

and Co l l ege staff (Art. 3.1). T h e U n l v e r s l t y w ~ l l ~ S S I S ~ In t h e f r a m m g of

c o n d l t l o n s f o r t h e a p p o m t m e n t of Co l l ege staff (Art. 3.4). The Unlvcrs l ty

will supply for use In the College teachlng mater la l and will co l l abora t e wl th

Co l l ege staff m thls regard (Art . 3.5). T h e U n l v e r s l t y w ~ l l asslst In

provld lng programmes In defmed f le lds of s tudy (Art . 4.1). A s tudent who

fu l f l l s a l l requl rements of t h e U m v e r s l t y d e g r e e a n d o t h e r r u l e s w ~ l l b c a w a r d e d

a d e g r e e of the Un lve r s l ty , endor sed to s h o w t h a t I t wa5 obtained through srudy

at the Co l l ege (Ar t . 7). The mlnlmum level to quahfy fo r admlss lon to t h e

4.

College by Year	12 students wlll be detcrmlned by the Vice-Chancellor of the
Unlverslty after	conslderatlon of the aggregate score necessary to quallfy for

admlsslon to the Unlversitles In South Austraha and Queensland (Art.8.1).

From 1987 al l Unlverslty external students resldent In the Northern Terrltory

will be enrolled through the College (Art. 12). A recommendatlon for appolntment

of staff at lecturer and above must be approved by the Vlce-Chancellor of the

Unlverslty and the Warden of the College (Art. 17). The Unlverslty and the

Terrltory will provlde the services described In thls agreement from I t s commencement

untl l 31 December 1991. The Unlverslty w ~ l l conslder an extenslon of th? agreement,

If lnvlted to do so (Art. 30).

The Unlverslty IS constltuted by the Unlverslty of Queensland Act

1965 (Q.) (s.5). Although provwon IS made In Part 1V of that Act for the

establlshment of unlverslty colleges, It IS not suggested that the college was

establlshed under thls Act. The Senate of the Unlverslty IS I t s governlng body

and It has ful l powers of management of the affalrs of the Unlverslty (s.11).

The Senate may from tlme to tlme make Statutes for the management of the

Unlverslty, lncludlng the powers to make Statutes with respect to the grantlng

of degrees (s.34(1)). By Statute No. 16 the Senate may confer degrees of

Bachelor and may make rules for the award thereof (s.1).

It IS common ground that the course being undertaken by

the f irst applicant IS substantially the same as the course whlch would be

undertaken by a student undertaklng a Bachelor of Arts degrce on the

campus of the Unlverslty. Conslstently wlth thls, It IS also common ground

5 .

that the courses offered on the Brlsbane and Darwln campuses are provlded by

dlfferent teachers and are not ldentlcal In content. It IS also common ground

that the flrst apphcant IS enrolled as a student to the College and I S not enrolled

as a student of the Unlverslty. The procedure contemplated by the agreement made

wlth the Unlverslty was Implemented In the case of the flrst apphcant. In the

18 11

f lrst place, he slgned an appllcatlon for admlsslon form to the College. He was

asked to lndlcate the course for whlch admlsslon was sought as follows:

"X.	Course for whlch admlsslon IS sought In 1987:
8.1 Undergraduate

. At the Un~vers~tyCollege, Darwm:

B.A.	Full-tlme
or El
B. S C . 0	Part-tlme rd

.	As an external student with the Unlverslty of Queensland:
B.A. 0 B. Comm.

U

B. E'= B.Ed.

U

By vlrtue of the declslon of the VlceEhancellor of thc

Unlverslty, the apphcatlon of the f m t apphcant was accepted. He thereafter

completed an enrolment form addressed to the College but lndlcated that he

was enrolllrg In the course of Bachelor of Arts. It IS common ground that

the f lrst appllcant IS a candldate for the degree of Bachelor of Arts 01 the

Unlverslty and that If he fulflls the requlrements of that Unlverslty he w ~ l l

be awarded that degree by the Unlverslty. That I S to say, It 15 not suggested

that the degree whlch would be awardcd 15 a College degree. By apphcatlon

made In February 1987, the flrst apphcant sought a tertlary allowance pursuant

6 .

to s.10 of the Act. By letter dated 24 Aprll 1987 a dlrector of the Department

of Education Informed the flrst appllcant that he was not entltled to rrcelvc

asslstance under the Act because the lnstltutlon at whlch he IS studylng does

not meet the defrnltlon of “an educatlon Instltutlon” as expressed In thc

leglslatlon.	The respondent IS “an authorlsed person” for the purposes of s.10
of the Act.	In her affldavlt sworn In these proceedlngs It was explalned that

she could not approve a grant of asslstance to the f m t appllcant because thc

vlew was taken that he was undertaklng a course at the College and the

College 1s not, under the regulatlons, to be treated as a unlverslty for the

purposes of the Act.

On behalf of the respondent, It IS submitted that both In

form and In substance, the flrst appllcant IS undertaklng a course at the

College. I t follows, the argument runs, that he IS not undertaklng a course

at the Unlverslty. Nor, It IS sald, IS hls course one that IS ”conducted by”

the Unlverslty for the purposes of the Mlnlsterlal determmatlon.

It may be accepted, for the purposes of the argument, that

a l l teral approach to the lnterpretatlon of s.10 could yleld that result. I f so,

then, In my opmon, such a l l teral result should, as a matter of the ordlnary

processes of statutory constructlon, be re~ected. It should, In my vlew, be

re~ected In favour of an lnterpretatlon wh~ch ehmlnates the absurd and

lrratlonal consequences whlch would otherwlse flow from a l l teral appllcatlon

of the words used. In my oplnlon, a “purposlve“ constructlon, whlch reflects

the underlylng p o k y of the Act+hould be adopted. (See CooDer Brookes

(Wollongong) Pty. Ltd. v. Federal Commlssloner of Taxatlon (1981) 147 C.L.K.

297 per Mason and Wllson JJ. at pp.319-321).

7.

It should be kept steadlly In mmd that the underlylng phllosophy

of the Act, so far as presently relevant, 15 to provlde asslstance to students

proceedlng to a tertlary degree awarded by one of our establlshed unlversltles.

The matter IS to be consldered from the perspectlve of the student In the context

of the partlcular tertlarycourse he IS undertaklT. It should be presumed that

such leglslatlon was Intended to be construed beneflclally from the standpomt

of the student; and It should not be presumed that anomolles were mtendcd 111

the operatlon of the Act.

I f the respondent's contentlons were correct, a serlous momoly

would occur. For Instance, a student on the Darwm campus proceedlng to a

B.A. (Q.), as In the case of the flrst appllcant. would be denled the allowance.

Yet a student on the Brlsbane campus proceedlng to the same degree and

domg the same course would recelve the grant. It IS dlfflcult to maglne that

the Parhament Intended that the leglslatlon produce such an lncqultable result.

Instead, In my oplnlon, s.10 was Intended to plck up an

undergraduate degree course offered by the College and the Unlverslty a5 a

lolnt, co-operatlve enterprlse In whlch a candldate, as In the case of the flrst

appllcant, proceeds towards a Bachelor of Arts degree awarded by the Unlverslty.

It IS true that the necessary Infrastructure on the Darwm campus IS provlded

by the Col1ege;and that the College and the Unlverslty are separate Instltutlons.

On the other hand, the Unlverslty IS actlvely mvolved In the academlc servlccs

provlded to students. It monltors the standard of those services. In conlunctlon

wlth the College, It assesses and examlnes the students. Most Important. It

IS the degree of the Unlverslty whlch IS awarded. It IS qulte artlflcldl to suggest,

as the respondent's argument must, that It IS posslble to separate the coursc

.

8.

f r o m t h e d e g r e e . T h e r e IS no ques t lon here of any honorary dcgrcc . The

c o u r s e a n d t h e d e g r e e go hand In hand. In t r u t h , b o t h t h e c o u r s c a n d t h e

d e g r e e a r e t h o s e of the Unlvers l ty provlded In co -ope ra t lon wl th the Co l l cgc

and th rough the med lum of Its Inf ras t ruc ture . In t h l s s e n s e , b o t h t h e c o u r x

a n d t h e d e g r e e m a y a c c u r a t e l y be c h a r a c t e r l s e d as provlded by the Unlversl ty .

Nor 15 I t any dlsqual l f lcat lon of t h e first a p p l l c a n t t h a t h c

1s no t s tudy lng on the Un lve r s l ty campus at Brlsbane. I t IS a c c e p t e d t h a t

ex te rna l s tuden t s may qua l l fy unde r s.10.

I t fol lows, In my vlew, that I t wou ld be accu ra t e to d e s c r h c

t h e f l r s t a p p l l c a n t as a s tuden t unde r t akmg a cour se of s tudy , I.e. a Bachelor

of A r t s c o u r s e , at the Unlvers l ty . In my v lew, he qua l l f les ds a person en t l t l ed

to r e c e l v e a g r a n t u n d e r s.10. I propose to g r a n t d e c l a r a t o r y r e h e f accordingly.

I h e r e b y c e r t l f y t h a t t h l s a n d t h e

precedlng seven (7) pages a re a t r u e

copy of t h e J u d g m e n t of hls Honour

Mr. Jus t l ce Beaumont

ssoclate to Beaumont J. H J o h m

Dated: 9 Ju ly 1987

Coursol and Sol lc l tors for Appllcants : R.A. Con t l Q.C. wl th C. Nlcholson

Instructed by Northern Terr i tory

D e p a r t m e n t of Law.

C o u n s d a n d S o l l c l t o r s f o r D. Gr l eve Q.C. wi th T. R l l e y

Respondent : l n s t r u r t e d by Austrahan Govcrrlnlcrl t \ohcltor

D a t e s of	Hearlng:	8 and 9 Ju ly 19Y7
D a t e of	Judgment :	9 July 19x7