Hill; Secretary, Department of Family and Community Services
[2003] AATA 545
•12 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 545
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/348
GENERAL ADMINISTRATIVE DIVISION
)
Re
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And
ESTELLE HILL
Respondent
DECISION
Tribunal
Mr M Allen, Member
Date12 June 2003
PlacePerth
Decision
The decision of the Tribunal is that:
· the decision of the Social Security Appeals Tribunal made on 14 August 2002 is set aside;
· in substitution therefor the Tribunal decides that the respondent does not qualify for Youth Allowance.
….........(sgd M Allen)............
Member
CATCHWORDS
SOCIAL SECURITY –Youth Allowance – Activity test – full-time study – approved course of education or study – whether course is a tertiary course – whether course accredited at Masters level – whether course expressly specified in Schedule 2 - meaning of “expressly specified” – whether course an integrated undergraduate/postgraduate course.
Curtin University of Technology Act 1966
Social Security Act 1991 – ss540, 541, 541B,
Social Security Administration Act 1999 – s179
Student Assistance Act 1973 – s5D
Ministerial Determination of Education Institutions and Courses No 1999/2 – clauses 5, 7, Schedule 2
Secretary, Department of Education Training and Youth Affairs v Lander (1996) 24 AAR 39
Tickner v Chapman [1995] 57 FCR 451
TCN Channel Nine Pty td v Australian Mutual Provident Society [1982] 62 FLR 366
Layt v Secretary, Department of Family and Community Services [2002] FCA 317
REASONS FOR DECISION
12 June 2003
Mr M Allen, Member
1. This is an application by the Secretary of the Department of Family and Community Services (‘the Secretary’) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 14 August 2002 which set aside a decision of a delegate of the Secretary dated 11 March 2002 that the respondent, Estelle Hill (“Ms Hill”) was not eligible for Youth Allowance benefit under the Social Security Act 1991 (“the Act”). The SSAT remitted the matter to the Chief Executive Officer of Centrelink for reconsideration in accordance with “… a direction that a determination should be made as to whether the Curtin University Master of Science (Speech Pathology) course meets the requirements of an integrated bachelor/master degree course as set out in section 3.3.10.40 of the Guide to the Social Security Law.”
2. Ms Hill completed a Bachelor of Arts degree at the University of Western Australia in 2001 and in early 2002 enrolled in the Master of Science (Speech Pathology) course (“the Masters course”) at Curtin University (“Curtin”). On 13 February 2002 she applied for Youth Allowance and on 11 March 2002 she was advised that the Masters course was not approved for the purposes of Youth Allowance and her application was, therefore, rejected. The decision was subsequently affirmed by the original decision maker and by an Authorised Review Officer (ARO) before being set aside by the SSAT as described in paragraph 1 above.
3. At the first hearing of the proceedings Ms Hackney from Centrelink’s Advocacy and Administrative Law Team represented the Secretary and Ms Hill represented herself with assistance from her mother. The matter was adjourned for the provision of further information by Centrelink and resumed on 4 April 2003 – when Ms Hackney again represented the Secretary and Ms Hill was represented by her mother, Mrs Hill, who participated by telephone.
Legislation
4. Section 540 of the Act provides that a person is qualified for Youth Allowance in respect of a period if throughout the period the person satisfies the activity test. A person satisfies the activity test in respect of a period if the person satisfies the Secretary that throughout the period the person is undertaking full-time study: s541(1). For the purposes of the Act a person is undertaking full-time study if the person is enrolled in a course of education at an educational institution, the course in question is an approved course of education or study and, in the Secretary’s opinion, the person is making satisfactory progress towards completing the course: s541B(1) Section 541B(5) provides that a course is an approved course of education or study if it is a course that the Employment Minister has determined, under s5D of the Student Assistance Act 1973 (“the Assistance Act”), to be a secondary course or a tertiary course for the purposes of that Act.
5. A determination has been made under s5D of the Assistance Act, namely Determination No. 1999/2 which commenced on 1 January 2000. In relation to tertiary courses, clause 7 of the Determination provides as follows:
“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.”
6. The parts of Schedule 2 of the Determination that are relevant to the present application are as follows:
Schedule 2
Column 1
Column 2
Undergraduate or postgraduate accredited higher education course that is an associate degree, associate diploma, diploma, advanced diploma, Bachelor degree, graduate degree, graduate certificate, graduate diploma, a NBCOTP funded course, a 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 Masters or Doctoral degree unless otherwise specified in Schedule 2.
Higher education institution
Registered training organisation
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 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.
For the sake of convenience I will call the row commencing “Undergraduate or postgraduate accredited…” Row 1 and the row commencing “Integrated undergraduate/postgraduate…” Row 2.
7. Clause 5 of the Determination provides that “a higher education institution, being an institution that is established under Commonwealth or State or Territory government legislation as a higher education institution or is registered by the relevant State or Territory Higher Education Recognition Authority” is to be regarded as an “higher education institution” - and therefore an “education institution” – for the purposes of clause 7 and Schedule 2.
Issue to be Determined
8. The question for the Tribunal to determine in this case is whether the Masters course is a tertiary course for the purposes of the AssistanceAct. The SSAT’s reference to “an integrated bachelor/master degree course as set out in s 3.3.10.40 of the Guide to the Social Security Law” can be taken as a reference to the “integrated undergraduate/postgraduate course leading to a Masters degree …” in Row 2 of Schedule 2. As I understand the SSAT direction to the Secretary, it wished consideration to be given to whether the Masters course undertaken by Ms Hill was such an integrated course.
The Evidence
9. No oral evidence was given in the proceedings, there being no dispute about the underlying facts of the case. The Tribunal received as evidence the documents lodged by the applicant pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and also received into evidence further documents submitted by the applicant (A1 to A3) and by the respondent (R1 to R6). The applicant provided further documentary material which the Tribunal received. Although not numbered as such in the hearings, for the purposes of these reasons the following documents have been identified as follows:
A4 – 8 pages of information regarding the Master of Psychology (specialisation) course of the University of South Australia.
A5 – 3 pages of material regarding the Master of Sport Management course and Graduate Diploma Sport Management Course of Edith Cowan University.
A6 – 2 pages of information regarding the Master of Communications course of Edith Cowan University.
A7 – 4 pages of information regarding the Master of Applied Science course of the University of Queensland.
A8 – extract of Minutes of the Meeting of the Board of Curtin University of 1 October 1999.
The Secretary’s Case
10. The Secretary submitted that the Masters course had been accredited by Curtin University as a Masters degree course and that on the authority of the Federal Court decision in Secretary, Department of Education Training and Youth Affairs vLander (1996) 24 AAR 39, the Tribunal should not undertake the task of assessing whether that accreditation was appropriately made. Consequently, as an accredited Masters degree course, it will not be a course that is specified in Column 1 of Schedule 2 of the Determination (as required by clause 7(1) of the Determination) unless it is “otherwise specified in Schedule 2” (as required by Row 1 of Schedule 2). The only other part of Schedule 2 that might be relevant to the course is that part which the SSAT wished the applicant to reconsider, namely whether it was an integrated undergraduate/postgraduate course leading to a Masters degree as referred to in Row 2 of Schedule 2. The Secretary argued that the degree in question was not an integrated course because, to be so, the course should bring together both undergraduate and postgraduate studies into the one course – which would usually take longer to complete than the undergraduate course alone. The Secretary drew attention to the fact that 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 or Science (Human Communications Science) course which was a 3-year program. The second was the course that Ms Hill enrolled in, namely the Master of Science (Speech Pathology) course which is available only as a full-time 2-year course. Although the two courses were complementary, in that they both provided entry to the profession of speech pathology, the courses were quite distinct and, therefore, not integrated.
Ms Hill’s Case
11. Ms Hill argued that the subjects studied in the Masters course are the same as some of those studied in the undergraduate course, taught in the same classes by the same lecturers, and having the same assessments. The Masters course has not been accredited as a Masters degree by any national accreditation board and the Curtin Handbook states that the Masters course is an “entry level qualification” for those with a Bachelors degree in other disciplines as “an alternative to the Bachelor of Science (Human Communications Science)” and that the course “was developed in conjunction with the undergraduate curriculum for the Bachelor of Science (Human Communication Science). In this way the school ensures the equivalence of the competencies of graduates from both the undergraduate and postgraduate professional entry level course.” (T13). As I understood Ms Hill’s case, it was in substance that the course was not in essence a Masters level course because it was in all material respects the same as the undergraduate course and in its teaching and assessment was integrated with that course. Ms Hill also argued that the Social Security Act is beneficial legislation and as such a favourable interpretation of any provisions should be given to a potential beneficiary.
Consideration of the Issues
12. At the outset it is necessary to make an observation about the relationship between clause 7(1) and clause 7(2) of the Determination. Clause 7(1) sets out, in a positive way, the requirements for a course to be a tertiary course i.e. that it be a course specified in Column 1 and conducted by an education institution specified for the course in Column 2 On the other hand, clause 7(2) identifies, in a negative way, what courses will not be tertiary courses for the purposes of the Act (i.e. any course accredited at Masters or doctoral level) but with the proviso that such a course will not be excluded if it is “expressly specified in Schedule 2.”
13. In my opinion the policy reflected in clauses 7(1) and 7(2) and Schedule 2 of the Determination is that, although some forms of postgraduate study will be regarded as tertiary courses for the purposes of the Assistance Act (and therefore Youth Allowance), study at the Masters or doctoral level will not be except in limited circumstances. If a particular course might be included as a tertiary course because it is, arguably, specified in Column 1 of Schedule 2 but is also a course that is “accredited at Masters or doctoral level” under clause 7(2), then it will not be, for the purposes of the Assistance Act, a tertiary course unless it is expressly specified in Schedule 2.
14. In other words, to be a tertiary course a course must be specified in Column 1 of Schedule 2. But if it is an accredited Masters (or doctoral) course it must overcome another hurdle. It will not qualify unless it is expressly specified in Schedule 2.
15. What significance should be attached to the addition of the adverb “expressly” to the verb “specified” in clause 7(2), when only the verb is used in clause 7(1)? “Specified” is, itself, a “’strong’ word – “signifying precision or precise statement””: Lander (supra) at p 44; Tickner v Chapman (1995) 57 FCR 451 at 480-481; TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 62 FLR 366 at 375. The New Shorter Oxford English Dictionary (1993) defines “expressly” as “1. Distinctly, positively, in plain terms, explicitly … in full detail; 3. For the express purpose.” In my opinion the compound expression formed by the combination of the words ‘expressly’ and ‘specified’ should be taken to require that a course must be identified with even greater particularity, precision and specificity than would otherwise be the case if it were only required to be “specified.”
16. It can be seen that Schedule 2 does not identify or specify individual courses. Rather, it sets out categories or types of courses and types of institutions in Columns 1 and 2. If that should be taken as the manner in which courses are to be “specified” for the purposes of clause 7(1) then, in my opinion, for a course to be “expressly specified” for the purposes of clause 7(2) it must be identified (or specified) in a more precise or explicit way with more detail. 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.
18. It is not in dispute that Curtin is a higher education institution for the purposes of Youth Allowance and the Determination and the course in question was offered by Curtin. Nor is it in dispute that Curtin has the ability to accredit its own courses. Section 7 of the Curtin University of Technology Act 1966 provides that the functions of the university include the provision of courses of study appropriate to a university, other tertiary courses, and of such other courses as may be approved by the Council; and that the university shall have all such powers, rights and privileges as are reasonably necessary to enable it to carry out its functions. It follows that Curtin has the power to accredit its own courses.
19. Document A8 records (and I accept) that the Masters Course was accredited (by Resolution UAB 138/99) by the Council of Curtin for commencement in the year 2000 as a Masters degree course.
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. Although the Schedule that was under consideration in Lander (supra) was somewhat different to the current Schedule 2, that decision of the Full Federal Court makes it clear that an approach by this Tribunal that goes behind the accreditation by the institution in an attempt to decide whether the accreditation as a Masters degree course was appropriate is an approach that is inconsistent with the notion of accreditation in the Determination. As the Full Court commented (at p 43), “it is quite at variance with the Determination’s concern with the course the tertiary institution conducts and accredits for the applicant or Tribunal to go behind the accreditation…”.
21. After the conclusion of the hearing in this case but before the finalisation of these reasons for decision, the decision of Dowsett J in Layt v Secretary, Department of Family and Community Services [2002] FCA 317 was delivered (on 11 April 2003). I arranged for a copy of that decision to be provided to the parties and invited (and received) written submissions thereon.
22. In his judgement Dowsett J reviewed the framework set out in the “Australian Qualifications Framework” document insofar as it related to tertiary qualifications and examined the process followed and considerations taken into account by the university concerned in that case in accrediting a course as a Juris Doctor (JD) course. His Honour referred to the absence from the Determination of any definition of the expression “masters or Doctoral degree” but concluded that it described degrees
“ … which are postgraduate and undertaken at a higher level than undergraduate degrees. Whilst it is arguable that the focus is on established, nomenclature, it is more likely that its focus is on course content and the level at which the course is to be conducted…I prefer to treat the reference to a masters or doctoral degree as describing by example the courses to be excluded from the first category, namely those offered to graduates, taught at a higher level and leading to a “higher” degree.” (at para 29).
23. The Secretary contended that the decision supported the decision to reject Ms Hill’s application, referring specifically to paras 6 and 29 of the judgment. Mrs Hill on behalf of Ms Hill contended that Dowsett J’s judgment supported Ms Hill’s case because the emphasis should not be on established nomenclature but rather on course content and the level at which the course is taught.. The Masters course undertaken by Ms Hill was not taught at a higher level (than the complementary undergraduate degree) or assessed differently. By any other name the Masters course would be an approved course.
24. Dowsett J’s judgement does not refer to the Full Court’s decision in Lander and it is unclear whether that decision was raised in argument. To the extent that Dowsett J’s approach might be said to involve an emphasis on reviewing the basis upon which a course was accredited and to require an evaluation of how the particular course is taught and assessed, that approach differs from the one endorsed by the Full Court – of not going behind the accreditation itself. I prefer – and am bound – to follow the approach of the Full Federal Court in Lander – that this Tribunal should not attempt to go behind the accreditation.
25. Consequently, I consider that I must regard the Masters course in this case as an accredited Masters degree. Clause 7(2) therefore operates to exclude it as a tertiary course unless it can be said to be “expressly specified” in Schedule 2 – which I have concluded requires that it be identified with greater precision or detail than the other categories of courses identified in the Schedule. In my opinion this requires the course to be identified by name (such as “Master of Science (Speech Pathology)” in Column 1 of Schedule 2 and in Column 2 either by the name of the individual institution (i.e. Curtin – if only this particular course is intended to be covered) or by words such as “university” or “higher education institution” (if all courses of this type offered by any university or any higher education institution are to be covered).
26. The Masters course is obviously not specified with that degree of particularity in Schedule 2. It follows that, in my opinion, it cannot be regarded as falling within the proviso of clause 7(2) and it must, therefore, be regarded as not being a tertiary course by virtue of clause 7(2).
27. I should, however, consider the position of the Masters course on the basis that the view I have taken about the degree of particularity required by clause 7(2) may be incorrect. I have, therefore, considered the position on the basis that the addition of the word “expressly” adds little or nothing to the word “specified” in terms of the degree of specificity with which a course must be identified – so that the phrase “expressly specified” in clause 7(2) means more or less the same as “specified” in clause 7(1). On this basis I have examined whether the Masters course can be said to be specified in either of Row 1 or Row 2 of Schedule 2.
28. So far as Row 1 is concerned, the Masters course is not one of the undergraduate or postgraduate courses mentioned in the opening part of Column 1 of the row nor is it a combined course that leads to two of those awards. It follows that Row 1 is not applicable – but even if it were one of those courses it remains the fact that it is also a Masters degree course and is therefore excluded from Row 1 unless it is otherwise specified in Schedule 2. Row 2 is the only other possibility.
29. Row 2 will only apply if the Masters course can be said to be an “integrated undergraduate/postgraduate course leading to a Masters degree” but excluding the years of study at the Masters level.
30. Relevantly, the Macquarie Dictionary (3rd edition) defines “integrate” as “1. to bring together (parts) into a whole; 2. to make up or complete as a whole, as parts do; … 7. chiefly US (of educational and other public systems) to become unified.” The New Shorter Oxford English Dictionary (1993) defines “integrated” as “1. combined into a whole, united, undivided …” and provides an example of the use of the word (from a magazine Business Education Today) as “an integrated course is one in which separate aspects of the curriculum … are subordinate to an overall unifying factor.”
31. In my opinion, the words used in the relevant part of Column 1 of Row 2 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 the Masters level and will lead to the granting of a Masters degree. For the purposes of Schedule 2, the combined course will only be a tertiary course for the purposes of the Determination for the normal full-time duration of the related undergraduate course and any part of the related postgraduate course that is not at the Masters level.
32. Ms Hackney provided examples of what Centrelink considered to be (or not to be) integrated courses. The first example was the Master of Psychology (specialisation) course offered by the University of South Australia. Students enrol at the outset for the full-time program of six years and the aim of the course is described as “to provide in a single professional degree sufficient and necessary education and training to enable the student to become registered as a Psychologist in South Australia and to provide full membership of the Australian Psychological Society, and one of its colleges.” The progress requirements specify that to progress to year 4 students must meet certain minimum requirements in years 1, 2 and 3 and those students who do not meet the requirements will exit with a 3-year Bachelor of Psychology. For progression to years 5 and 6, students must achieve a certain grade in year 4 and those who do not will exit with a 4 year Bachelor of Psychology (Honours) degree. Those students who satisfy the year 5 and 6 requirements exit with the degree of Master of Psychology (specialisation). Ms Hackney submitted that this course is an example of an integrated undergraduate and postgraduate course and that Youth Allowance would be paid to a student (who otherwise qualifies) for the first four years but not the last two years of the course.
33. The second example provided was the Master of Sport Management course at Edith Cowan University. This course is described as having 2 stages; stage 1 consisting of the Graduate Diploma of Business (Sport Management) which is offered separately by the University, and stage 2 leading to the Masters degree. The Graduate Diploma of Business (Sport Management), is described as a requirement for admission to the Masters program. Ms Hackney contended that this is not an integrated course because students enrol separately in the Graduate Diploma and then in the Masters course. The Graduate Diploma course would be a tertiary course for the purposes of the Determination (under Row 1 of Schedule 2) but the Masters course would not be.
34. The third example provided was the Master of Communications degree offered by Edith Cowan University. This course consists of two stages, each of one year and students who complete stage 1 but are unable to proceed with stage 2 may be eligible to graduate with a Postgraduate Diploma of Communications. Students can only enrol in the Masters course as there is no separation of the Graduate Diploma and the Masters course at the time of enrolment. Ms Hackney submitted that students who enrol in the Masters course would not be eligible for Youth Allowance and that this is not an integrated course.
35. It is apparent from the many cases that have been dealt with by this Tribunal in recent years that courses offered by universities and accredited as Masters degrees (or doctoral degrees) often are very similar (in terms of content, teaching and assessment) to another course offered by the same institution at the undergraduate level. That appears to be the case in respect of the Curtin undergraduate and postgraduate courses in the Speech Pathology area. I agree with Ms Hackney’s contention that 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. It is, in my opinion, clear that the Bachelor of Science (Human Communications Science) course and the Master of Science (Speech Pathology) courses offered by Curtin are related and similar – but they are separate courses and are not integrated into a single course. It follows that (even using a lower requirement of degree of specification in Schedule 2) the Masters course is not an integrated course for the purposes of the Determination and is not a tertiary course for the purposes of the Assistance Act. It is not, therefore, an approved course of education or study for the purposes of s541B of the Act.
Conclusion
32. My conclusions are that the Masters course is a course accredited at Masters level offered by a higher education institution and is not expressly specified in Schedule 2. It is, therefore, excluded from being a tertiary course by clause 7(2) of the Determination. Alternatively, the Masters course is not a course specified in either Row 1 or Row 2 of Schedule 2. Specifically, it is not, in my opinion, an integrated course within the meaning of Row 2. It is not, therefore, a tertiary course pursuant to clause 7(1) of the Determination.
33. The SAAT set aside the original decision of the Secretary and remitted the matter to the Secretary for reconsideration in accordance with a direction that a determination should be made as to whether the Masters course met the requirement of an integrated Bachelor/Masters degree course. By virtue of s179(2) of the SocialSecurity (Administration) Act 1999 that direction is taken to be the decision of the SSAT. My decision is that the decision of the SSAT is set aside and in substitution therefore I decide that Ms Hill was not qualified to receive Youth Allowance for the reasons set out herein.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: .............(sgd V Wong)................................
AssociateDate/s of Hearing 27 February, 4 April 2003
Date of Decision 12 June 2003
Counsel for the Applicant Ms K Hackney
Solicitor for the Applicant Service Recovery Team, Centrelink
Counsel for the Respondent Mrs H Hill
2
4
0