Rowland and Secretary, Department of Family and Community Service S
[2003] AATA 205
•4 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 205
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/358
GENERAL ADMINISTRATIVE DIVISION )
Re SOLOMON ROWLAND Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date4 March 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd)....................
J Cowdroy
Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – whether Juris Doctor degree at University of Queensland is a Masters level degree – whether Juris Doctor is an “approved course of education or study” – whether applicant is entitled to youth allowance
Social Security Act 1991ss 540, 541(1)
Student Assistant Act 1973 s 5D
Re Lacy and Secretary, Department of Family and Community Services; and Secretary, Department of Family and Community Services and Layt [2002] AATA 598
Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088
REASONS FOR DECISION
4 March 2003 Ms J Cowdroy, Member Background
1. This matter involves a decision by Centrelink, made on 12 October 2001, to cancel payment of the applicant’s youth allowance. That decision was affirmed by the Social Security Appeals Tribunal (“the SSAT”) on 2 April 2002.
Hearing
2. Mr B Mumford of counsel represented the applicant. Mr R McQuinlan, Departmental Advocate, represented the respondent. Pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the T-documents were admitted into evidence as Exhibit E1 and the applicant’s statement of facts and contentions was admitted into evidence as Exhibit E2. The matter was determined on the basis of those documents and the written and oral submissions of the parties.
3. The sole issue before the Tribunal is whether the Juris Doctor offered by the University of Queensland is an approved course of education or study for the payment of youth allowance.
4. The factual basis leading to the matter being brought before the Tribunal is as follows:
§The applicant enrolled in the Juris Doctor course at the University of Queensland at the beginning of 2001.
§He undertook a workload of a full-time student and he applied for youth allowance in connection with those studies.
§Mr Rowland was in receipt of youth allowance until payment was cancelled on 12 October 2001 on the basis that the Juris Doctor was considered to be a Masters degree course and he was therefore ineligible for youth allowance.
Legislative Framework
5. Section 540 of the Social Security Act 1991 (“the SS Act”) states that a person is qualified for youth allowance, if, amongst other things, they satisfy the activity test. Section 541(1) provides that a person satisfies the activity test if the Secretary is satisfied that, throughout the period, the person is undertaking full-time study.
6. The definition of the term “undertaking full-time study” is set out in section 541B of the SS Act. One of the criteria is that the person is enrolled or intends to enrol in an “approved course of education or study”. In section 541B(5), an “approved course of education or study” is a course that the Employment Minister has determined, under section 5D of the Student Assistant Act 1973, to be a secondary course or a tertiary course for the purposes of that Act. The determination in force at the time that the applicant’s claim which was rejected was Determination No 1999/2, which commenced on 1 January 2000. Clause 7 of that Determination states as follows:
“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 or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.”
7. Schedule 2 defines the category of tertiary courses offered by a higher education institution and is as follows:
“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 Masters 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.”
Submissions
8. It is common ground that the Juris Doctor is not a Masters or Doctoral degree specified in Schedule 2. It is contended by the applicant that the Juris Doctor is a graduate degree and therefore falls within one of the categories of tertiary courses set out in Schedule 2. Reference was made to the University of Queensland’s Academic Board Minutes (1/2000) for a meeting on 31 January 2000 in which the Academic Programs Policy Committee (“APPC”) considered a proposal from the Faculty of Business, Economics and Law to establish a graduate degree in law (the Juris Doctor) on 23 March 1998. At that time the proposal was supported with a caveat that the schedule of subjects proposed would consist of postgraduate level subjects or subjects taught at postgraduate level and that an English nomenclature replace Magister Juris.
9. Subsequent to the meeting, the Head of the School of Law confirmed that the nomenclature Master of Legal Science would be an acceptable substitute. Subsequently, the APPC was asked to reconsider the issue in light of the fact that the Melbourne University was marketing a similar degree (Master of Legal Science) under the title of Juris Doctor. This would seem to have been placing the University of Queensland’s Law School at a marketing disadvantage compared with the School of Law at Melbourne University. Subsequently, it was resolved to recommend that the Master of Legal Studies be re-named Juris Doctor.
10. Mr Mumford pointed out that the Juris Doctor is a three-year postgraduate program and is described in the University of Queensland’s Handbook for 2002 as a postgraduate law degree (T43/138). It is to be contrasted with a Masters of Laws degree that requires a Bachelor of Laws degree as a pre-requisite. In order to qualify for admission to Juris Doctor, a degree or equivalent tertiary qualification from any subject area other than law is required.
11. The Juris Doctor is a postgraduate course that permits accelerated admission as a legal practitioner. At T41/123 it states that the Juris Doctor commenced in 1999 under the name Master of Legal Science and in April 2000 the Senate of the University of Queensland approved the name change to Juris Doctor. It also stated that a new curriculum had been introduced to coincide with the new name. Similar sentiments are expressed in other University publications.
12. Further, a letter from Associate Professor Tomas Riha (T12/63-64) states that:
“The Juris Doctor is a globally recognised graduate law qualification. It is not a higher degree in law and is not accredited as a Masters course by The University of Queensland.”
13. Conversely, at T14, Ms Dendle, Manager of Enrolments Section, in answer to a query as to the status of the Juris Doctor Program, states that:
“All courses are taught and coded as ‘7’ – coursework masters subjects. The degree was approved by the University’s Senate on that basis.”
14. Mr Mumford pointed out that the Minutes of the Senate do not reflect that position. He also suggested that the Tribunal should treat Ms Dendle’s comments with caution as it was likely that that information was provided to her by Professor O’Connor, President of the Academic Board.
15. He referred the Tribunal to letters dated 14 March 2002 and 26 March 2002 from Professor Anthony A Tarr, Head of TC Beirne School of Law, which he acknowledged are difficult to reconcile. In the first letter, Professor Tarr states that the Juris Doctor is a program that precedes a Masters level qualification whereas his later letter describes the Juris Doctor as a Conversion Masters, (noting that it underwent a name-change from Master of Legal Science with no other substantial change to the program). It was submitted that little weight could be placed on Professor Tarr’s later letter.
16. Essentially, the applicant contends that the Juris Doctor is a postgraduate accredited higher education course, namely a graduate degree which is classified as such in the University of Queensland’s Handbook. With respect to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) (T45/157), which describes the Juris Doctor as a course at the level of “Masters Coursework”, this material does not form part of the Handbook of the University of Queensland as it is material published by a body independent of the University and is not to be regarded as authoritative.
17. The respondent relied primarily on the findings of this Tribunal in the matters of Re Lacy and Secretary, Department of Family and Community Services; Secretary, Department of Family and Community Services and Layt [2002] AATA 598. It was contended that the applicant’s submission relies heavily on the information contained in the University’s Handbook and attributes less weight to the accrediting process. Further, the minutes of the Academic Board, when taken in their entirety, indicate that whilst contemplating a change of name, a new program was not envisaged.
18. The letter of 26 March 2002 written by Professor Tarr was clearly written to clarify his earlier comments and it was regarded as significant that the later letter refers to a name change with no other substantial change to the program.
19. The Tribunal’s attention was also drawn to the letter from Professor Ian O’Connell, President of the Academic Board (T35/101). He states relevantly that the Senate of the University of Queensland formally approves programs and their associated rules on the recommendations of the Academic Board. He states the program was explicitly approved as a Masters level program and that no substantive changes were made when the program was renamed Juris Doctor.
20. It was submitted that any curriculum changes which did occur were likely to have been of a cosmetic nature related to the marketability of the Juris Doctor in order to make it attractive internationally.
21. Whilst the University of Queensland’s Handbook refers to the Juris Doctor as a postgraduate degree, this in itself is not determinative of whether it is accredited at a particular level. The material clearly shows the course was accredited in the Senate as a Masters degree, even if it is described differently in the Handbook. In this context the comments of the Full Court of the Federal Court of Australia in Secretary, Department of Education, Training and Youth Affairs v Lander [1996] FCA 1088 were referred to. Even if the Juris Doctor is inappropriately described, it is not permissible to go behind the accreditation process. Whilst the University Handbook terms it as a postgraduate degree, this does not assist the Tribunal in determining the Juris Doctor’s true nature.
22. An alternative viewpoint would be that the Juris Doctor displays feature which are common to both a postgraduate degree and that of a Masters degree and, as the course has some subjects are coded as level 7, the course has some hybrid features.
23. Professor Tarr’s lack of definitive response as to the accreditation status of the Juris Doctor is significant, in light of his knowledge that students were experiencing difficulty in qualifying for Austudy and Youth Allowance payments. If Professor Tarr could have pointed authoritatively to any document to the effect that the Juris Doctor was accredited at other than a Masters level, it was likely that he would have done so.
24. It was submitted that the course’s description in the Handbook should be given less weight than other material.
Findings and Determination
25. What is clear is that there is a plethora of opinions as to the status of the Juris Doctor. It has been previously described as a Masters level program, a postgraduate degree, and a Masters conversion course. In the University of Queensland’s Handbook for 2002 it is described as a postgraduate law program which is specifically designed for graduates seeking legal professional admission.
26. The thrust of the applicant’s submission is that the redesignation of the Master of Legal Science to Juris Doctor followed a decision to introduce a graduate degree in law and support for that is said to be found in the Handbook which refers to a new course and a new curriculum. However, the Academic Board in recommending that the Master of Legal Science be renamed Juris Doctor, did not make mention of any change in curriculum.
27. Further, although the Handbook with an introduction by Professor Tarr refers to a new curriculum, no evidence was provided to the Tribunal that this was the case and it is interesting that Professor Tarr, himself, in his letter dated 26 March 2002, refers to no other substantial change to the program consequent upon its name change. As there were students undertaking the Master of Legal Science at the time the change of name was implemented, it is a reasonable assumption that any changes to the curriculum were of a cosmetic nature.
28. If one disregards all the opinions expressed as to the status of the Juris Doctor, then one is left with the minutes and the Handbook of the University. Whilst it is classified in the Handbook as a graduate degree, one still needs to decide the level at which the course was accredited. If it were permissible to qualify under Schedule 2 purely on the basis of the classification in the Institution’s Handbook, then the term “Accredited Higher Education Course” or more particularly, the accreditation process would have little meaning.
29. On balance, I consider that the Juris Doctor is a Masters degree and it follows that it is not an approved tertiary course for the purposes of youth allowance.
30. The Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Denise Burton
Administrative AssistantDate of Hearing 2 December 2002
Date of Decision 4 March 2003
For the Applicant Mr B Mumford, Counsel
For the Respondent Mr R McQuinlan, Departmental Advocate
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