Hayes and Secretary, Department of Education, Science and Training
[2006] AATA 1083
•14 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1083
ADMINISTRATIVE APPEALS TRIBUNAL № V2006/605
GENERAL ADMINISTRATIVE DIVISION
Re: GEORGIA ELLEN HAYES
Applicant
And:SECRETARY,
DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal: Mr C. Ermert, Member
Date:14 December 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) C. Ermert
Member
SOCIAL SECURITY – Austudy payments – activity test – qualifying study – approved course – Student Assistance Act 1973 – whether tertiary course – disallowable instrument N° 2002/1 – Schedule 2 – whether course at Master’s level – whether specified in Schedule 2 – whether integrated course.
Social Security Act 1991
Student Assistance Act 1973
Campbell and Secretary, Department of Employment and Workplace Relations [2006] AATA 80
Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39
Secretary, Department of Family and Community Services and Hill [2003] AATA 545
Van Wirdum and Secretary, Department of Family and Community Services [2004] AATA 239
REASONS FOR DECISION
14 December 2006 Mr C. Ermert, Member
INTRODUCTION
1. Ms Georgia Ellen Hayes is undertaking a full‑time Master of Speech Pathology course at La Trobe University. The course requires full‑time enrolment over two years to obtain a qualification in Speech Pathology at a postgraduate level of study. Ms Hayes is in her first year of the course. As the course is at the Masters degree level, students do not normally receive Austudy payments.
2. Ms Hayes submitted an application for Austudy on the basis that the first year of the course is not at the Masters level, because students are able to exit the course at the end of the first year with a Postgraduate Diploma in Human Communication Sciences. The other reason she submitted the application is that, according to Ms Hayes, friends of hers doing the same course under the same circumstances have qualified for Austudy.
3. Ms Hayes’ application was rejected by Centrelink, which acts as the service delivery agent of the respondent, the Secretary to the Department of Education, Science and Training (the Secretary). Ms Hayes sought review of that decision in turn by the original decision maker, an Authorised Review Officer at Centrelink and the Social Security Appeals Tribunal (SSAT) without success. This hearing is a review of the SSAT decision made on 31 May 2006.
THE HEARING
4. Ms Hayes represented herself at the hearing. The Secretary was represented by Mr P. Mentor, a solicitor with Sparke Helmore Lawyers. I had before me the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), and the Statement of Facts, Issues and Contentions. Ms Hayes tendered a letter from Centrelink dated 18 September 2006 (Exhibit A1). Ms Hayes had another pressing commitment and excused herself from the hearing before its completion and consequently did not hear Mr Mentor’s submissions. Ms Hayes was given leave to tender further documents after the hearing. A bundle of documents from La Trobe University and Speech Pathology Australia (the supplementary documents) were subsequently received from Ms Hayes and passed to Mr Mentor for perusal. The Secretary’s submissions regarding the supplementary documents were essentially the same as the submissions made at the hearing itself, hence there is no need to consider them separately.
THE ISSUES
5. According to s 568 of the Social Security Act 1991 (the Act) a person qualifies for Austudy in respect of a period if, throughout the period:
(a) the person satisfies the activity test; and
(b) the person is of Austudy age; and
(c) the person is an Australian resident.
6. Ms Hayes’ age and resident status are not in dispute and are not considered further. This leaves only the activity test to be considered.
7. Section 569 of the Act relevantly states that a person satisfies the activity test if the person is undertaking qualifying study, which is defined as an approved course of study as determined under s 5D of the Student Assistance Act 1973 (the Student Assistance Act) to be a secondary course or a tertiary course for the purposes of the Act. The courses so determined are to be found in Determination N°. 2002/1: Determination of Education Institutions and Courses under subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (the Minister’s Determination) (T14, pp66-74).
8. The issue in this case is whether the course in speech pathology being undertaken by Ms Hayes is an approved course of study as determined under s 5D of the Student Assistance Act.
Is the La Trobe University Master of Speech Pathology an Approved Course?
9.Section 5D of the Student Assistance Act relevantly provides:
(1)The Minister may, for the purposes of this Act, determine in writing that:
(a)a course of study or instruction is a secondary course, or a tertiary course;
…
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts interpretation Act 1901.
10. The Minister’s Determination made under s 5D(1) of the Student Assistance Act contains the following relevant provisions:
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 of Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.
11. There are two relevant categories in Schedule 2 of the Minister’s Determination. The first is shown as the fifth category in Column 1:
Undergraduate or postgraduate accredited higher education course that is at the level of:
·[various levels];
·…
·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.
12. The other relevant category is the last one in Column 1:
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).
13. Column 2 of Schedule 2 of the Minister’s Determination describes the education institution relating to each of the categories in Column 1. It is not disputed that La Trobe University is an approved education institution for the purposes of these proceedings. Accordingly, the entries in Column 2 are not relevant to this matter.
14. Clause 7(2) of the Minister’s Determination clearly excludes from approved courses any course at the Master’s level, unless the course is expressly specified in Schedule 2. Therefore, for Ms Hayes to be entitled to Austudy payments while undertaking the La Trobe University Master of Speech Pathology course, the course must not be at Master’s level and it must be included in the course categories specified in the fifth category of Schedule 2 in the Minister’s Determination, or it must be an integrated course, excluding the year or years relating to study at the Master’s level. More simply put, the issue to be determined is whether the Master of Speech Pathology course, or a year of that course, is not a Master’s level course despite its name.
Is the Course, or Part of the Course, not a Master’s level Course?
15. Ms Hayes’ principal contention is that the first year of her course is not study at Master’s level, but is only a Postgraduate Diploma level course. In her evidence she stated:
… if you do exit after one year you get a post-graduate diploma, but you can only enrol technically in the Masters. So when it comes up on your enrolment it is a Masters degree not a post graduate degree. But if you go through the handbook then it says it is a post-graduate for the first year.
16. In her letter to this Tribunal, dated 3 July 2006 (T1, p4), Ms Hayes contended that the first year is actually a graduate diploma. In her supplementary documents Ms Hayes included a print‑out of a document from the La Trobe University web site. The document had a section highlighted which stated:
Students are able to exit the course at the end of the first year with a Postgraduate Diploma in Human Communication Sciences (HPHCS).
17. This option of an early exit from the course after one year of study with an award of a Postgraduate Diploma in Human Communication Sciences is also contained in a letter from La Trobe University addressed to the Manager, Centrelink, dated 4 May 2006 (T10).
18. In her supplementary documents Ms Hayes included a Position Statement by Speech Pathology Australia which records both Bachelor and Master’s degree entry into the profession. The document does not show, however, that graduate entry into the profession can be gained with a Postgraduate Diploma in Human Communication Sciences. Indeed, at the SSAT hearing, Ms Hayes said that:
…
she is not sure what someone would be qualified to do if they graduated with a Post Graduate Diploma in Human Communication Sciences, as you need either the Masters in Speech Pathology or a four year undergraduate Speech Pathology degree to be recognised as a speech pathologist (T2, p8).
19. The relevance of the document from Speech Pathology Australia is not apparent and it is not considered further.
20. In the respondent’s Statement of Facts and Contentions the Secretary contends:
…that the applicant is enrolled in a Masters course which does not fall within Schedule 2 of the Minister’s Determination and is therefore not an approved course of education or study as determined under section 5D of the Student Assistance Act 1973.
In his oral submissions Mr Mentor summarised Ms Hayes’ evidence as follows (transcript, p23):
…she is enrolled in a Masters and if she does the two years and passes at the appropriate level, she will end up with a Masters. If she chooses to terminate it at the end of first year, or if her marks are not high enough to go beyond first year, she is awarded the graduate diploma. But that doesn’t take away from the fact, I submit, that she is actually enrolled in a Masters degree.
21. Mr Mentor referred to a number of cases in support of his submissions. The first was Van Wirdum and Secretary, Department of Family and Community Services [2004] AATA 239. The only relevant issue related to the proper construction of s 1061PB(2) of the Act, which is worded in the same way as s 569(2) of the Act, which excludes persons from the activity test if they have completed a Master’s course at an educational institution. The Tribunal found that by excluding those that have already completed a Master’s course from receiving benefits the section does not include those that have not yet completed a Master’s course. I note that this is not a contention being pursued by Ms Hayes.
22. The second case Mr Mentor referred to was Campbell and Secretary, Department of Employment and Workplace Relations [2006] AATA 80. Ms Campbell enrolled in a Bachelor of Primary Education Studies. After her application was accepted but before she commenced her studies the course was converted to a Master of Teaching. Centrelink determined that the course was not an approved course and so Ms Campbell was not entitled to the pension education supplement. The applicant asked the Tribunal to treat her course not as a Master’s degree, but as an undergraduate Bachelor’s degree, because that is what she had initially applied for and because she said that the content of the course was essentially the same as the Bachelor’s degree that it had been converted from. In its Reasons for Decision the Tribunal said:
35. The Tribunal looked at Schedule 2 as a whole, and it appears clear that the definition of “tertiary course” intends to exclude what the Tribunal will refer to as pure Masters studies.
…
Study at Masters level is specifically excluded.
36. The Tribunal is satisfied that the Department’s interpretation of the schedule is correct, and that the degree that is being undertaken by the applicant is excluded from the definition of “tertiary course” as defined by Schedule 2 in that it is a degree at Masters level. It follows that the applicant is therefore not undertaking “qualifying study” for the purpose of s 1061PA of the Act in that the course that she is undertaking is not an approved course for the purposes of s 1061PC of the Act.
37. The Tribunal had some sympathy for the applicant’s position in that she applied for a Bachelors degree course which would have qualified for student education assistance, but that course was then restructured and became a Masters degree course … and she has suffered considerable financial difficulties.
38. Nevertheless, the Tribunal is satisfied that on the basis of the law as it currently stands the decision under review is a correct decision and the Tribunal affirms the decision under review.
23. The third case referred to was Secretary, Department of Family and Community Services and Hill [2003] AATA 545. Ms Hill was doing a Master of Science (Speech Pathology) at Curtin University. Curtin University offered two courses that would permit a person to qualify as a speech pathologist. The first was an undergraduate degree named the Bachelor of Science (Human Communication Sciences) course which was a three year program. The second was the course that Ms Hill enrolled in, namely the Master of Science (Speech Pathology) course which was available only as a full‑time two year course. Ms Hill’s case was that the course she was undertaking was not in essence a Master’s level course because it was in all material respects the same as the undergraduate course and its teaching and assessment were integrated into that course.
24. Mr Mentor referred the Tribunal to two relevant issues arising from Hill: the level of the Master’s course and whether the course is expressly specified in Schedule 2 of the Minister’s Determination. On the first issue Mr Mentor said that the Tribunal looked at a decision of the Full Federal Court in Secretary, Department of Employment, Education, Training and Youth Affairs v Lander (1996) 24 AAR 39 which said that the Tribunal should not undertake the task of assessing whether the accreditation made by the university was appropriately made. The Tribunal said that it should not go behind the accreditation that the university gave (transcript, p22).
25. On the second issue Mr Mentor quoted from the Tribunal’s decision in Hill:
16. …Given the policy that I consider to exist of excluding Masters or doctoral level courses from the scheme, it would not be unreasonable to conclude that a course will only be “expressly specified” for the purposes of clause 7(2) if it is individually identified – by the title of the course and, perhaps, the individual institution offering it.
17. By this reasoning, if the Masters course undertaken by Ms Hill is a course “accredited at Masters … level offered by a higher education institution” then by virtue of s7(2) it would not be a tertiary course unless it is individually identified with particularity in Schedule 2.
…
20. Although on the evidence it seems clear that the content of the Masters course is similar to, or the same as, much of the content of the complementary undergraduate Bachelors degree, it is not open to the Tribunal to look behind the level at which the institution accredited the degree.
26. Mr Mentor said that:
The Tribunal then concluded that it must regard the Masters course which Ms Hill was undertaking was an accredited Masters degree and the conclusion … reached at paragraph 32 was that as it was a course accredited at Masters level by a higher education institution and not expressly specified in schedule 2, it was excluded from being a tertiary course by clause 7.2 (sic) of the Ministerial determination (transcript, p24).
27. Mr Mentor summarised his submissions:
Finally, I submit that the question to be answered here is simple. The applicant is enrolled in a Masters Degree, that the Tribunal should not go behind that and examine whether it should properly be called a Masters Degree or in the first year should properly be called a Graduate Diploma. The Tribunal should not go behind that and should find that in accordance with the direction of … determination number 1 of 2002 of the Minister, schedule 2, it is not listed in that as being an approved tertiary course and by reason of subclause 7.2 [sic], because it is not expressly specified in schedule 2, you should not consider that it is a tertiary course for the purpose of granting Austudy (transcript, pp24-25).
CONSIDERATIONS
28. In considering Ms Hayes’ contentions I had regard to the material from La Trobe University in Ms Hayes supplementary documents provided after the hearing. The university web site introduces the course as:
The Master of Speech Pathology (by coursework) enables graduates with a first degree other than Speech Pathology to obtain professional qualification in Speech Pathology at a postgraduate level of study. The course requires full-time enrolment over two years (6 semesters) …
29. This wording is identical to that contained in another document from La Trobe University (T13, p49) which goes on to say:
The two years of the PBL curriculum are organised into three units primarily based around the component processes of communication (speech, language, voice and fluency) and the process of swallowing. The emphasis of learning objectives in the first unit is for students to describe and apply principles of normal communication. During the second unit learning objectives are expanded to include the mechanisms and consequences of communication breakdown. The focus of learning in the third unit is on therapeutic intervention and case management.
30. The course prerequisites are:
Applicants should hold a bachelor degree and have obtained a B average in the last 2 years in their undergraduate degree or H2A or above in their Honours degree to be eligible to apply (T13, p49).
31. It is clear from this documentation that the La Trobe University Master’s course in Speech Pathology is a postgraduate course with the entry qualifications requiring applicants to have a Bachelor’s degree to be eligible to apply. To follow Ms Hayes’ contention that the first year of the course is at Graduate Diploma level it is then necessary to consider whether the course is made up of separate components, one at Graduate Diploma level and the other at Master’s level.
32. The course description shows that the course is designed as a single entity of two years of study (T13, p49). The course description shows no break up by years of study into a Graduate Diploma course followed by a Master’s course. Instead, the course is made up of three sets of learning objectives. There is no indication that the first year is actually a graduate diploma as contended by Ms Hayes. If I were to attempt to look into the detailed make up of the course and ascribe levels to different parts of the whole course I would clearly be going against the finding in Hill that the Tribunal should follow the approach of the Full Federal Court in Lander and not attempt to go behind the education institution’s accreditation.
33. I next considered the decisions in Van Wirdum and Campbell but found the circumstances in each to be sufficiently different from the present case that they did not assist me in reaching a decision.
34. From the above considerations I find that the course in which Ms Hayes is enrolled is a Master’s level course. It is a single course, not broken up into components at Graduate Diploma and Master’s level. The fact that students who do not complete the course are able to be granted a Graduate Diploma does not alter the Master’s level of the Master of Speech Pathology course in which Ms Hayes is enrolled.
35. I next considered whether the course is an integrated course as shown in the last category of Schedule 2. The descriptions of the Master of Speech Pathology course as provided in the supplementary documents and in T13 make no mention of the course being integrated with a Graduate Diploma course in Human Communication Sciences or with any other course of studies. All descriptions are of a single two year Master’s level course. There have been many cases in this Tribunal dealing with the issue of integrated courses. In Hill the Tribunal used the following descriptor of such an integrated course:
35. … to be an integrated course the course must be of the kind exemplified by the Master of Psychology (specialisation) course at the University of South Australia. That is a single course to be taken over six years and combines into a single program related undergraduate and postgraduate content.
36. In my opinion the Master of Speech Pathology course does not fit this description. It is only a two year course and there is no evidence that it is combined into a single program with any other course with undergraduate content. Accordingly, I find that the Master of Speech Pathology course is not an integrated course, and it does not fit the last category of Schedule 2.
ADDITIONAL SUBMISSION
37. Ms Hayes submitted that friends of hers are doing the same course under the same circumstances and have succeeded in their applications for Austudy. She asked whether this Tribunal could inquire into the situation where some people are getting paid by Centrelink for the course and others are not, stating that she just want[s] equality. I advised Ms Hayes that this hearing is confined to reviewing the SSAT decision and applying the relevant provisions of the Act to her situation. Mr Mentor offered to raise the issue with Centrelink.
CONCLUSION
38. I find that the Master of Speech Pathology course being undertaken by Ms Hayes is a Master’s degree not otherwise specified in Schedule 2. It is not a tertiary course under the provisions of clause 7(2) of the Minister’s Determination. Therefore the course is not a tertiary course for the purposes of s 5D of the Student Assistance Act and it is not an approved course under s 569B of the Act. Accordingly Ms Hayes is not undertaking qualifying study in accordance with the provisions of s 569A of the Act. As a result she does not satisfy the activity test of s 569(1) of the Act and therefore she does not qualify for Austudy payments in accordance with s 568 of the Act.
DECISION
39. The Tribunal affirms the decision of the SSAT dated 31 May 2006.
I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr C. Ermert, Member
(sgd) Olympia Sarrinikolaou
ClerkDate of Hearing: 1 November 2006
Date of Decision: 14 December 2006
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr P. Mentor, Sparke Helmore Lawyers
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