Kellalea and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2012] AATA 761
•2 November 2012
[2012] AATA 761
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2625
Re
KATRINA KELLALEA
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy, RFD
Date 2 November 2012 Place Brisbane The Tribunal affirms the decision under review.
...................[Sgd]................................................
Senior Member Dr K S Levy, RFD
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Student Start-up Scholarship – Relocation Scholarship – Accredited higher education course – Preparatory course – Diploma of Music – Ministerial Determination – Use of government policy in decision making process – No sufficient nexus between successful completion of diploma course and entry into bachelor course – Decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 592F, 592J, 592M, 592N
Social Security (Approved Scholarship Courses) Determination 2010 (No. 1)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
2 November 2012
INTRODUCTION
The applicant, Katrina Kellalea is undertaking a Diploma of Music (Jazz Performance) at the Jazz Music Institute (JMI). She was granted Youth Allowance with effect from 10 December 2011 and commenced the Diploma of Music (Jazz Performance) on 4 February 2012. Shortly, afterwards, she applied for a scholarship, either the Student Start-up Scholarship (“SSS”) or the Relocation Scholarship (“RS”). That application was rejected by the Secretary on 6 March 2012. She sought a review internally within Centrelink by an authorised review officer (ARO). That officer affirmed the original decision of Centrelink on 21 March 2012.
Ms Kellalea then appealed to the Social Security Appeals Tribunal (SSAT). That Tribunal affirmed the decision by the ARO on 25 May 2012. Ms Kellalea now appeals that decision to this Tribunal.
ISSUE
The question for determination is whether the Diploma of Music (Jazz Performance) conducted by the Jazz Music Institute is an “approved scholarship course” as referred to in the statutory law and subordinate statutory instrument.
EVIDENCE
Ms Kellalea is 21 years of age and is qualified for youth allowance and for present purposes it is relevant that she has been paid youth allowance since 10 December 2011. She originally applied for entry into a Bachelor of Music course at JMI. She was not accepted for that course but she was offered a place in the new Diploma of Music course conducted for the first time in 2012 at JMI. She then applied for a Student Start-up Scholarship and a Relocation Scholarship. The Student Start-up Scholarship is designed to assist students undertaking a higher education or preparatory course and is subject to a means test. The Relocation Scholarship is in addition to Student Start-up Scholarship and is payable to full-time students who are in receipt of youth allowance but are required to live away from home to undertake a higher education or preparatory course which is conducted by a higher educational institution.
The applicant gave oral sworn evidence to the Tribunal. She undertook the course as it was her intention that it would qualify her to gain entry into the Bachelor of Music course which she had applied for in 2011. She understood that it was established for the purpose of assisting persons in her position. She is now due to complete that course in about three weeks’ time.
It was agreed by the parties that Mr Quigley should also be called to give evidence in relation to this matter. He is the Academic Administrator Enrolment Officer at JMI. He told the Tribunal he has been in his position for two years although JMI has been a registered training organisation since 1998. The history of the Bachelor of Music course at JMI is that it was first offered in 2010 and there is a specific stream of that course which is a Bachelor of Music in Jazz. He said that the entry requirements were based on an applicant’s successful audition. He also said that it was not an automatic entry after completing the diploma course as most students would still have to go through an audition. He told the Tribunal the diploma course was in its first year of operation and is a stand-alone course. A separate qualification is awarded in respect of completing the diploma.
As this is the first year that that course has been conducted, there is not a pattern of reliable information to show how those who complete the diploma course feed into the Bachelor’s degree. However, Mr Quigley said that in the first year of operation, there were approximately 20 students enrolled in the Bachelor of Music in Jazz course and 10 students enrolled in the Diploma of Music course. He anticipated that at approximately half of the 10 diploma students would go on to be enrolled in the Bachelor’s degree.
Mr Guthrie, for the respondent, referred Mr Quigley to his letter, dated 15 March 2012, in relation to Ms Kellalea’s Relocation Scholarship application. There, he said that the diploma is not strictly an “enabling course” but that:
the content delivered is designed to prepare students that are not up to Bachelor entry level to be able to do so once they have completed the diploma. Therefore, it is arguable that the diploma is a preparatory course for the Bachelor of Music even though the course does lead to an award.
The letter from Mr Quigley also pointed out that a student who successfully completes the diploma is eligible for up to 80 credit points towards the Bachelor’s degree (or one year of full‑time study).
Mr Quigley told the Tribunal that the diploma provides students with skills which give them a better chance of gaining entry into the Bachelor’s degree. However, it is a vocational course. In response to a question from the Tribunal about the specific link between the diploma and the Bachelor of Music courses, Mr Quigley said that the diploma course will give students an understanding of theory and harmony knowledge which will then make them more competitive for entry into the Bachelor’s degree.
SUBMISSIONS
The Secretary submitted that the diploma course is not an approved course for the purposes of the relevant legislation in this case. It was submitted that the diploma is a vocational education and training course but is not a “preparatory course” as defined in the Social Security (Approved Scholarship Courses) Determination 2010 (No 1) (“the Determination”), dated 29 March 2010. That Determination amplifies the statutory provisions. It was argued by Centrelink in its submissions that the course of Diploma of Music is not a preparatory course for two reasons:
(1)It is a “stand-alone” course and it qualifies a person for a separate award; and
(2)It is a vocational course and not a higher education course.
Mr Guthrie pointed to the definition of preparatory course and that it was designed to assist a person to gain entry into a higher education course. But, Mr Guthrie said, the diploma course does not provide automatic admission as any successful graduate from the diploma course was still required to complete an audition as the criteria for entrance into the Bachelor’s degree. He also referred the Tribunal to the departmental policy which is contained in the Guide to Social Security Law (“the Guide”). It states that the vocational educational and training courses are not preparatory courses for the purposes of the Determination (see Instruction 3.8.16.10 of the Guide).
It was submitted that the Tribunal is not bound to follow the Guide, although the law anticipates that in interpreting relevant statutory provisions in this area, that policy of the Government would be applied unless there are cogent reasons for departing from that approach (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634; Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20).
Ms Kellalea referred the Tribunal in her final submission to the outline and description of the Diploma of Music (Jazz Performance) (T-document 11, folio 37). She drew the attention of the Tribunal to the first paragraph of that information document, which provided as follows:
If your earlier studies in music are not sufficient for entry into an undergraduate degree program, this could help you bridge the knowledge gap. It is an intensive one year performance program that focuses on the development of the musical skills and theoretical knowledge required for the Bachelor of Music in Jazz Performance.
The applicant’s written evidence points to her understanding that she would be qualified for these scholarships after speaking with staff of Centrelink on a number of occasions. She indicated that she had suffered stress as a result of pursuing this application and was at one stage hospitalised with stress related asthma.
CONSIDERATION
I have taken into account all of the evidence submitted to the Tribunal, both documentary and oral. At the outset, I note for the purposes of dealing with superfluous statutory requirements, Ms Kellalea has been undertaking the Diploma of Music course since 4 February 2012 and there is no issue that she has commenced the course. Indeed, she will complete the year of study in the near future.
The applicant applied for two scholarships:
(a)The Student Start-up Scholarship – this is to assist a student to commence a specific higher education course; and
(b)Relocation Scholarship – this scholarship is provided to qualified university students who have to live away from their family home in order to study.
Both these scholarships require certain criteria to be satisfied. The relevant ones which are important for consideration of this matter are that:[1]
(a)The student must be a full time student;
(b)The student must be qualified for youth allowance and youth allowance must be paid to that person;
(c)The course must be conducted by an approved higher education provider; and
(d)The student must be undertaking an approved scholarship course.
There is some other qualifying or disqualifying criteria, most of which were not referred to by either party. I proceed on the basis that other statutory criteria are not relevant here.
[1] The qualification criteria for Student Start-up Scholarship and Relocation Scholarship are contained in sections 592F and 592J of the Social Security Act 1991 (Cth), respectively.
An approved scholarship course as mentioned in ss 592F and 592J of the Social Security Act 1991 (Cth) (“the Act”) is defined in ss 592M and 592N. Section 592M of the Act states that such a course is one “approved by the minister under a determination made for the purposes of s 592N”. The Determination is the Social Security (Approved Scholarship Courses) Determination 2010 (1). Paragraph 4 of the Determination states that an approved scholarship course is either:
(a)An accredited higher education course; or
(b)A preparatory course.
It must be assessed whether the Diploma of Music course undertaken by the applicant falls within either of those two definitions.
Is Ms Kellalea’s course an accredited higher education course?
An accredited higher education course is defined in para 3 of the Determination as either:
(a)A higher education course accredited by an authority responsible for the accreditation of higher education courses in a state or territory; or
(b)A higher education course conducted and accredited by an institution that is authorised by a law of the Commonwealth or of the State in which the institution is located to accredit its own education courses.
The respondent provided evidence from the Tertiary Education Quality and Standards Agency website. That evidence shows that the Jazz Music Institute Pty Ltd is a higher education provider but is not a self-accrediting authority. It also shows that the only accredited course for the purposes of this application is the Bachelor of Music in Jazz and is accredited until 31 August 2014. Therefore, the diploma course conducted by JMI is not a higher education course.
Is Ms Kellalea’s course a “preparatory course”?
There are two elements to this definition, which is also contained in para 3 of the Determination. They are:
(a)The course must be offered by a higher education institution; and
(b)The course is “designed to assist people to gain entry to higher education level courses (including enabling and bridging courses)”.
The evidence provided from the Tertiary Education and Quality Standards Agency website shows that JMI is a higher education institution. Therefore, that element is satisfied. The next element of the definition is the main area of focus in determining the applicant’s eligibility for scholarship.
Mr Quigley gave evidence that the Diploma of Music is not an enabling or bridging course. That was common ground at the SSAT hearing and those positions are unchanged at the hearing for this Tribunal. I accept that the Diploma of Music is not a bridging or enabling course. The critical question is therefore whether the Diploma of Music is a course which is designed to assist people to gain entry into higher education level courses (other than bridging or enabling courses).
Centrelink says that Ms Kellalea’s course is not a preparatory course and argues, as the basis for that submission, that:
(a)the Diploma of Music is a “stand alone” course and it also has its own award; and that
(b)it is a vocational education and training course and is not a higher education course.
The applicant on the other hand argues that she was informed by Centrelink that she would qualify for these scholarships and that the purpose of undertaking the diploma course was so she would be qualified to undertake the Bachelor of Music degree.
The respondent argues it is also relevant to consider the policy set out in the Guide in determining the correct interpretation of whether this course fits within the statutory definition. I have given consideration to the contents of the Guide, in particular the sections dealing with the two scholarships which the applicant has applied for (ss 3.8.15 and 3.8.16).
In considering the policy and the submissions of the parties, the factual background is also informative. The ARO decision and notes show that the applicant was not successful in being admitted to the Bachelor of Music degree on the first attempt as her music theory was not at an acceptable level. Ms Kellalea also apparently said “she is aware that the diploma is not an approved course for SSS and RS” but that she pursued the diploma as a channel for her to gain entry into her desired course of Bachelor of Music, with a subsequent objective to obtain a career as a music teacher. I note that the applicant has obviously been distressed throughout this process because of the strain on her financial resources. The ARO, and subsequently the SSAT, regarded the diploma course as not being a preparatory course as it was not “designed” to allow entry into a higher education course as it is a “stand alone” award.
For my part, I have some difficulty accepting that proposition. Whether it is a “stand alone” award or not, is not part of the assessment criteria in the legislation, or the subordinate instrument (the Determination), as to whether the diploma may be regarded as a preparatory course. There may be many reasons, costs being one of them, why a person may a complete a diploma but not proceed to undertake a Bachelor of Music.
The respondent points out, correctly, that while the Tribunal is not bound to follow the Guide strictly, it will ordinarily be expected to apply the policy unless there are cogent reasons for not doing so.
As was set out in the recent judgement of the Full Court of the Federal Court in Hneidi v Minister of Immigration and Citizenship [2010] FCAFC 20 (“Hneidi) at [40], the “seminal authority” for a decision maker to take government policy into account is Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577. There, Bowen CJ and Deane J (at 70) said consideration of policy is “…a relevant factor for the Tribunal to take into account in reviewing the decision”. But it is for the Tribunal to determine the matter independently based on the material before it. It is not a matter of merely comparing whether there is compliance with a government policy. The Tribunal must determine the “correct or preferable” decision (per Bowen CJ and Deane J).
The Tribunal must consider the policy and indicate why it has reached the conclusion it has where it places reliance on a departmental or government policy (Hneidi at [44]). In relation to the definition of “preparatory course” in the Determination, it seems the applicant was aware, at least as far back as the ARO decision statement on 21 March 2012 that the Diploma of Music was not an approved course for Student Start-up Scholarship or Relocation Scholarship (see ARO notes for 21 March 2012). In addition, I find that the submissions of the parties should be determined as follows:
(1)In relation to the applicant’s submission, I regarded her as a witness of truth, but any expectation based on statements by Centrelink staff, whether any advice was correct or not, cannot override what the law is unless I find that it is unjust on the balance of all considerations.
(2)In relation to the respondent’s submission that it is a “stand alone” course, that is not determinative of whether the Diploma of Music is a “preparatory course”.
(3)The consideration of Centrelink and also of the SSAT about the way the course was “designed” is different to the purpose or outcome of the course; this also does not determine if a course is a preparatory course. The purpose was, in the evidence of Mr Quigley, “preparatory” in the sense that it was designed to facilitate at least a greater likelihood of success for a student to be accepted for the Bachelor of Music degree.
(4)It seems to me that if a course is a “preparatory course” for a specific higher education level course, then there would need to be some evidence of a nexus or link which shows that the completion of the diploma course would lead to entry into the Bachelor’s degree. This is partly achievable as the evidence shows that the completion of the diploma will be likely to facilitate successful entry into the Bachelor of Music degree. But this is also not determinative. A student must still be assessed by audition. That is quite apart from the theory component, which it was said was the reason why the applicant did not succeed in gaining entry to the Bachelor degree course for 2012. On that basis, completion of the diploma course is not the sole qualification for gaining entry to the degree course and therefore there is not a sufficient nexus or link to show that it is a “preparatory course” as referred to in the Determination.
(5)The diploma course is also a vocational education training course and not a higher education course. That fact has not been disputed by the applicant or Mr Quigley either at this Tribunal or previously. The exclusion of a vocational education and training course from being an “approved scholarship course” is set out in the Guide.
Ms Kellalea is obviously an astute and pleasant young lady and dedicated to music. It would always be more pleasurable to be able to see such people supported in education to the maximum possible extent. But the extent of that support as provided for by the Determination is amplified by the Common Law. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] 2 ALD 634, Brennan J, as President of the Administrative Appeals Tribunal, commented on the position which departmental or government policy should be given as a consideration in a matter such as this. His Honour stated that policy is a most important consideration as consistency of application of policy is central to maintaining a relatively uniform standard and that failure to adopt such consistency can lead to unfairness to others and the undermining of confidence in government.
Taking all of the evidence into account, I think the principle of consistency in a merits review of this case leads to the conclusion that the Diploma of Music (Jazz Performance) is not a “preparatory course” and is, therefore, not an “approved scholarship course” for the purpose of s 592N of the Act.
CONCLUSION
The decision under reviewed is affirmed.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD ................[Sgd]..................................................
Associate
Dated 2 November 2012
Date of hearing 26 October 2012 Applicant In person Advocate for the Respondent Mr Joe Guthrie
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